iiililii iim !li;|ii|f|jfilSfllf#ii CORNELL LAW LIBRARY From the Library of the Late ROBERTS WALKER Friend and Partner of Justin DuPratt White (Cornell 'go) Presented to Cornell University In Memory of That Relationship by MR. WALKER'S FAMILY Cornell University Library KF 101.8.P48 1851 V.6 Condensed reports of cases in the Suprem 3 1924 022 843 506 PI Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022843506 CONDENSED REPORTS OF CASES IN mt Sttjitrewe eoutrt Of m muttn states, . , :: , CONTAINING THE WHOLE SERIES OP THE DECISIONS OF THE COURT FROM ITS ORGANIZATION TO THE COMMENCEMENT OF PETERS'S REPORTS AT JANUARY TERM, 1827. COPIOUS NOTES OF PARALLEL CASES IN THE SUPREME AND CIRCUi: COURTS OF THE UNITED STATES. EDITED BY RICHARD PETERS, OOVAtttBLLOil AT LAW AVJi BEPORTER OF THE DECISIONS OF THE SUPREME COURT OF THB UNITED STATES. THIRD EDITION. IN SIX VOLUMES. VOL. VL NEW YORK: PTJBLISHED BY JACOB R. HALSTEB, » LAW BOOKSELLER, CORNER OP WALL AnKbROAD STREETS, (OPPOSITE The custom-house.) 1851. i5^^?y^ PRINTED BY SMITH & PETKRS Frankliu Buildings, Sixth Street belotr Arcli, Phila,l<;Ii)bia. LIST OF CASES. Allegre, Ramsay D 12 Wheaton's Kep. 611 667 A.lmeida, Manro and others v 10 Wheaton's Eep. 473. ... 190 Amedy, United States v 11 Wheaton's Kep. 392.... 362 Antelope, The; The Vice-Consuls of Spain and Por- tugal, Libellants 10 Wheaton's Rep. 66 30 Antelope, The; The Vice-Consuls of Spain and Por- tugal, Libellants ...11 Wheaton's Rep. 413 368 Antelope, The ; The Spanish and Portuguese Consuls, Claimants 12 Wheaton's Rep. 546 629 Armstrong v. Toler 11 Wheaton's Eep. 258 298 Armstrong i;. Lear, Administrator of Kosciuszko 12 Wheaton's Rep. 169. . . . 500 Banks, Carneal and others v 10 Wheaton's Rep. 181 ... . 64 Banks v. Carneal and others 10 Wheaton's Rep. 181.... 64 Bank of the United States v. Bank of Georgia 10 Wheaton's Rep. 333 120 Bank of Georgia, Bank of the United States v 10 Wheaton's Rep. 333 120 Bank of the United States v. Halstead 10 Wheaton's Rep. 51 22 Bank of the United States, Etting v 11 Wheaton's Rep. 59 216 Bank of the United States v. Smith 11 Wheaton's Rep. 171 257 Bank of the United States, Finley » 11 Wheaton's Rep. 304 319 Bank of the United States, Williams v 11 Wheaton's Rep. 414 368 Bank of the United States, Mills v 11 Wheaton's Rep. 431 373 Bank of the United States v. Dandridge 12 Wheaton's Rep. 64 440 Bank of the United States, M'Gill and others » 12 Wheaton's- Eep. 511 617 Barker, United States v 12 Wheaton's Rep. 559 641 Barnes and others v. Williams 11 Wheaton's Rep. 415.... 369 Bouldin and others. Piles and others v 11 Wheaton's Rep. 325. . . . 330 Brent and others v. Davis 10 Wheaton's Rep. 395. ... 156 Brooks ». Marbury 11 Wheaton's Rep. 78 223 Brown and others v. The State of Maryland 12 Wheaton's Rep. 419. .. . 554 Bussard, Wetzell » 11 Wheaton's Rep. 309 322 Carneal and others ». Banks 10 Wheaton's Rep. 181.... 64 Carneal and others, Banks v 10 Wheaton's Eep. 181.... 64 Carnoehan and Mitchel v. Christie and another 11 Wheaton's Eep. 446. . . . 382 Carroll, Cassello 11 Wheaton's Rep. 134.... 249 Cassell «. Carroll 11 Wheaton's Rep. 134.... 249 Catlett, The Columbian Insurance Company v 12 Wheaton's Rep. 383 541 Chace and others v. Vasquez 11 Wheaton's Rep. 429. ... 373 Chamberlain, De la Croix v 12 Wheaton's Rep. 599 659 Chew, Jackson ex dem. St. John v 12 Wheaton's Rep. 153. .. . 489 Chirac and others v. Reinicker 11 Wheaton's Eep. 280. .. . 310 Ohism, Day and others v 10 Wheaton's Rep. 449 181 iii iv LIST OF CASES. Chotard and others v. Pope and another 12 Wheaton's Rep. -586. ... 655 Christie and another, Carnochan and Mitchel v 11 Wheaton's Rep. 446 382 Circuit Court of Maryland, Parker and another v 12 Wheaton's Rep. 561. .. . 644 Clark V. The Mayor, Aldermen, and Common Council of the City of Washington 12 Wheaton's Rep. 40 425 Columbian Insurance Company, Janney v 10 Wheaton's Rep. 411 166 Columbian Insurance Company v. Catlett 12 Wheaton's Rep. 383. ... 541 Common Council of Alexandria, Fowle v 11 Wheaton's Rep. 320 328 Connor and others v. Featherstone and others 12 Wheaton's Rep. 199. .. . 521 Corporation of Washington v. Young 10 Wheaton's Rep. 406. ... 163 Dandridge and others. The President, Directors and Company of the Bank of the United States v 12 Wheaton's Rep. 64 440 Daniel and others, Williamson and others v 12 Wheaton's Rep. 568 651 Darby's Lessee v. Mayer and another 10 Wheaton's Rep. 465. ... 185 Darby, Edwards's Lessee v 12 Wheaton's Rep. 206 521 Davidson and another v. Taylor 12 Wheaton's Rep. 604. . . . 660 Davis, Brent and others v 10 Wheaton's Rep. 395. ... 156 Day and others v. Chism 10 Wheaton's Rep. 449 181 De la Croix v. Chamberlain. . , 12 Wheaton's Rep. 599. . . . 659 Denn ex dem. Page, Wright » 10 Wheaton's Rep. 204.... 76 Devereaux v. Marr 12 Wheaton's Rep. 212. .. . 522 De Wolf I). Johnson 10 Wheaton's Rep. 367 140 De Young, Keplinger v 10 Wheaton's Rep. 358. . . . 135 Doe ex dem. Governeur's Heirs v. Robertson and others. 11 Wheaton's Rep. 332 334 Doe ex dem. Patterson v. Winn and others 11 Wheaton's Rep. 380. . . . 355 Dos Hermanos, The ; Shields, Claimant 10 Wheaton's Rep. 306 109 Drummond v. Prestman's Executors 12 Wheaton's Rep. 515. .. . 620 Dunlap and another v. Dunlap and others 12 Wheaton's Rep. 574 654 Dunlap and others, Dunlap and another v 12 Wheaton's Rep. 574 654 Early and others. The Postmaster-General of the United States « 12 Wheaton's Rep. 136 480 Edwards's Lessee v. Darby 12 Wheaton's Rep. 206. . . 521 Elmendorf B.Taylor and others 10 Wheaton's Rep. 152.. .. 47 Etting V. The Bank of the United States 11 Wheaton's Rep. 59 216 Executors of Prestman, Drummond v 12 Wheaton's Rep. 515 620 Executor of Robinson, Lidderdale's Executors v 12 Wheaton's Rep. 594 656 Featherstone and others, Connor and others v 12 Wheaton's Rep. 199. .. . 521 Finley v. The Bank of the United States i 1 Wheaton's Rep. 304 319 Fowle V. The Common Council of Alexandria 11 Wheaton's Rep. 320. . . . 328 Fowler and others, Littlepage v 11 Wheaton's Rep. 215 280 Gaillard and others, Harcourt and others v 12 Wheatbn's Rep. 523. . . . 628 Gardner and others. Potter v 12 Wheaton's Rep. 493. . . . 606 General Interest Insurance Company ti. Ruggles 12 Wheaton's Rep. 408 554 Gooding, The United States v 12 Wheaton's Rep. 460 572 .Governeur's Heirs v. Robertson and others .11 Wheaton's Rep. 332. . . . 334 Gran Para, The; The Consul-General of Portugal, Libellant 10 Wheaton's Rep. 497 199 Griffin's Heirs, Walker and Wife v 11 Wheaton's Rep. 375. .. . 353 Guy, Shelby and others t» 11 Wheaton's Rep. 361 345 Haile, Mason « 12 Wheaton's Rep. 370 535 Halstead, Bank of the United States v 10 Wheaton's Rep. 51 22 Handy, Harding and others v 11 Wheaton's Rep. 103 236 Handy v. Harding and others ..11 Wheaton's Rep. 103. . . 236 Harcourt and others v. Gaillard and others 12 Wheaton's Rep. 523. . . 628 Harding and others D. Handy 11 Wheaton's Rep. 103 236 Harding and others. Handy « 11 Wheaton's Rep. 103 236 Hart, Perkins 11 11 Wheaton's Rep. 237 287 LIST OF CASES v Harvie's Heirs, Thomas e.. 10 Wheaton's Eep. 146. ... 44 Henderson v. Poindexter's Lessee 12 Wheaton's Rep. 530. ... 628 Hernandez and others„Montgomery i> 12 Wheaton's Rep. 129.... 475 Hinde, Mallow and others ».. 12 Wheaton's Rep. 193.. 516 Hindes Lessee «. Longworth H Wheaton's Rep. 199... 270 Jackson and others, Winn's Heirs v 12 Wheaton's Rep. 135. 479 Jackson ex dem. St. John v. Chew 12 Wheaton's Rep. 153. 489 Jackson, Newman » 12 Wheaton's Rep. 570.... 653 Janney v. The Columbian Insurance Company 10 Wheaton's Rep. 411. .. . 166 Johnson, De Wolf v 10 Wheaton's Rep! 367. ... 140 JosefaSeguuda, The; Roberts and others. Claimants. .10 Wheaton's Rep. 312.... Ill Judges of the Circuit Court of Maryland, Parker and another J) jl2 Wheaton's Rep. 561. .. . 644 Kelly and others. United States v 11 Wheaton's Rep. 417. .. . 370 KepUnger u. De Young 10 Wheaton's Kep. 358.... 136 Lear, Armstrong » 12 Wheaton's Rep. 169.... 500 Lexington, Trustees of the Town of, M'Connell i; 12 Wheaton's Rep. 582 654 Lidderdale's Executors v. the Executor of Robinson. . . 12 Wheaton's Rep. 594 656 Littlepage v. Fowler and others 11 Wheaton's Rep. 215 280 Longworth, Hinde's Lessee v 11 Wheaton's Rep. 199 270 Mallow and others v. Hinde 12 Wheaton's Rep. 193 516 Manro and others v. Almeida 10 Wheaton's Rep. 473 190 Marchant and Colson, The United States v 12 Wheaton's Rep. 480 588 Marbury, Brooks » 11 Wheaton's Rep. 78 223 Marianna Flora, The; The Vice-Consul of Portugal, Claimant 11 Wheaton's Rep. 1 201 Marr, Devereaux u 12 Wheaton's Rep. 212 522 Martin v. Mott 12 Wheaton,'s Rep. 19 410 Maryland, Brown and others » 12 Wheaton's Rep. 419 554 Mason and another v. Matilda and others 12 Wheaton's Rep. 590. . . . 655 Mason B.Haile 12 Wheaton's Rep. 370 535 Matilda and others. Mason and another v 12 Wheaton's Rep. 590. . . . 655 Mayer and another. Darby's Lessee v 10 Wheaton's Kep. 465 185 Mayor, Aldermen, and Common Council of the City of Washington, Clark v 12 Wheaton's Rep. 40 425 M'Connell v. The Trustees of the Town of Lexington. 12 Wheaton's Rep. 582 654 M'Cormick and Wife and others B.SuUivant and others. 10 Wheaton's Rep. 192.... 71 M'Dowell V. Peyton and others ! 10 Wheaton's Rep. 454. ... 184 M'Gill and others v. The President, Directors and Com- pany of the Bank of the United States 12 Wheaton's Rep. 511.... 617 Miller's Heirs v. M'Intire and others 11 Wheaton's Rep. 441.... 382 Mills, The Bank of the United States « 11 Wheaton's Rep. 431.... 373 M'Intire and others, Miller's Heirs v 11 Wheaton's Rep. 441. . . . 382 M'Lemore v. Powell and others 12 Wheaton's Rep. 554. . . . 636 Montgomery v. Hernandez and others. 12 Wheaton's Rep. 129. . . . 475 Morris, United States v 10 Wheaton's Rep. 246.... 90 Mott, Martin v 12 Wheaton's Rep. 19 410 Newman v. Jackson 12 Wheaton's Rep. 570.... 653 Nioholl, The United States » 12 Wheaton's Rep. 505... 511 Norris, Williams » 12 Wheaton's Rep. 117 462 Ogden ». Saunders 12 Wheaton's Rep. 213 523 Ortega, The United States 11 Wheaton's Kep. 467. ... 394 Otiso. Walter 11 Wheaton's Rep. 192.... 270 Owing and others, Taylor's Devisees v 11 Wheaton's Rep. 226. . . . 286 a2 Ti LIST OF CASES. Palmyra, The ; Escurra, Master 12 Wheaton's Hep. 1 897 Palmyra, The; Depau, Claimant ,,.10 Wheatoa's Eep. 502.... 'MO Parker and another v. The Judges of. the Circuit Court of Maryland 12 Wheaton's Rep. 56U... 044 Perkins v. Hart IT Wheaton's Kep. 237. ... 287 Patterson ». Winn and others II Wheaton's Rep. 380.... 355 Peter and Johns, Thompson v 12 Wheaton's Kep. 565 649 Peyton and others, M'Dowell v 10 Wheaton's Rep. 454. ... 184 Piles and others v. B. Amedy 11 Wheaton's Rep. 392 362 United States ». Kelly and others 11 Wheaton's Rep. 417 370 United States «. Tappan and others 11 Wheaton's Rep. 419,,.. 372 United States «. Ortega , 11 Wheaton's Rep. 467. ... 394 United States*. Vanzandt 11 Wheaton's Eep. 184.... 264 United States ». Tillotson aird another 12 Wheaton's Eep. 1 80. . . , 507 United States B. Gooding 12 Wheaton's Rep. 460..,. 572 LIST OF CASES. vii United States v. Marchant and Colson 12 Wheaton's Eep. 480. . . . 588 United States v. Three Hundred and Fifty Chests of Tea 12 Wheaton's Eep. 486 593 United States v. NichoU 12 Wheaton's Eep. 505 611 United States v. Priscilla Barker 12 Wheaton's Eep. 559 641 Vanzandt, United States » 11 Wheaton's Eep. 184.... 264 Vasquez, Chace and others u 11 Wheaton's Eep. 429.... 373 Walker and Wife v. Griffin's Heirs 11 Wheaton's Sep. 375. .. . 353 Walter, Otis v. 11 Wheaton's Eep. 192.... 270 Washington, City of, Clark v 12 Wheaton's Eep. 40 425 Wayman and another v. Southard and another , . 10 Wheaton's Eep. 1 1 Wetzell V. Bussard ,.11 Wheaton's Eep. 309 322 Williams v. The Bank of the United States 11 Wheaton's Eep. 414 368 Williams, Barnes and others v 11 Wheaton's Eep. 415. .. . 369 Williams 1). Norris ,.12 Wheaton's Eep. 117 462 Williamson and others v. Daniel and others 12 Wheaton's Eep. 568. . . . 651 Winn and others, Doe ex dem. Patterson v 11 Wheaton's Eep. 380. . . . 355 Winn's Heirs v. Jackson and others 12 Wheat-on's Eep. 135 479 Wright V. Denn ex dem. Page 10 Wheaton's Eep. 204. ... 76 Wynn, Thornton u 12 Wheaton's Eep. 183 508 Young, Corporation of Washington » 10 Wheaton's Eep. 406 163 CASES DECIDED Ef)t Siupvtmt eotttt of m mmutf states* FEBRUARY TERM, 1825. Hon. JOHN MARSHALL, Chief Justice. Hon. BUSHROD WASHINGTON, Associate Justice. Hon. WILLL4.M JOHNSON, Associate Justice. Hon. THOMAS TODD, Associate Justice.(a) Hon. GABRIEL DUVALL, Associate Justice. Hon. JOSEPH STORY, Associate Justice. Hon. smith THOMPSON, Associate Justice. William Wirt, Esq., Attorney-General. Wayman and another v. Southard and another. 10 Wheaton's Separts, 1. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States; and the states have no authority to control those *pro- ^itn ccedings, except so far as the state process acts arc adopted by congress, or by the L courts of the United States under the authority of congress. [See note at the end of the case.] The proceedings on executions, and other process, in the courts of the United States, in suits at common law, are to be the same in each state, respectively, as were used in the supreme court of the state in September, 1789, subject to such alterations and additions as the said courts of the United States may make, or as the supreme court of the United States shall prescribe by rule to the other courts. A state lavv regulating executions, enacted subsequent to September, 1789, is not applicable to executions issuing on judgments rendered by the courts of the United States, unless ex- pressly adopted by the regulations and rules of those courts. The thirty-fourth section of the judiciary act of 1789, c. 30, which provides, "that the laws of the several states, except," &c., " shall be regarded as rules of decision in trials at com- mon law, in the courts of the United States, in cases where they apply," does not apply to the process and practice of the courts. It is a mere legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci. [See note at the end of the case.] . (a) Mr. Justice Todd was absent during the whole of the present term from indisposition. Vol. VL— 2 9 2 SUPREME COURT. [Wayman v. Southard.] The statutes of Kentucky concerning executions, which require the plaintiff to endorse on the execution that bank notes of the Bank of Kentucky, or notes of the bank of the Common- wealth of Kentucky, will be received in payment, and, on his refusal, authorize the defendant to give a replevin bond for the debt, payable in two years, are not applicable to executions issuing on judgments rendered by the courts of the United States. The case of Palmer v. Mien, 7 Cranch, 550, 2 Cond. Rep. 607, reviewed and reconciled with the present decision. THIS cause was certified from the circuit court for the district of Kentucky, upon a certi§eate of a division of opinion between the judges of that court, on several motions, which occurred on a motion made by the plaintiffs to quash the marshal's return on an execution issued on a judgment obtained in that court, and also to quash the replevin bond taken on the said execution, for the following causes. 1. Because the marshal, in taking the replevin bond, and making said return, has proceeded under the statutes of Kentucky, in relation to execu- tions ; which statutes are not applicable to executions issuing on judgments in this court, but the marshal is to proceed with such executions according to the rules of the common law, as modified by acts of congress, and the rules of this court, and of the supreme court of the United States. 2. That if the- statutes of Kentucky, in relation to executions, are binding on this court, viz. the statute which requires the plaintiff to .endorse on the execution, that bank notes of the Bank of Kentucky, or notes- of the Bank of the Commonwealth of Kentucky, will be received in payment, or that the defendant may replevy the debt for two years, are in violation of the constitution of the United States, and of the state of Kentucky, and void. 3. That all the statutes of Kentucky which authorize a defendant to *Qi *give a replevin bond in satisfaction of a judgment. or execution, are i unconstitutional and void. 4. Because there is no law obligatory on the said marshal, which au- thorized or justified him in taking the said replevin bond, or in making the said return on the said execution. The court below being divided in opinion on the points stated in the motion, at the request of the plaintiffs, the same were ordered to be certified to this court. This cause was argued by Mr. Cheves, and Mr. Sergeant, for the plain- tiffs ; and by Mr. Bibb, and Mr. Monroe, for the defendants, at the last term. Cases cited : Co. Litt. 58. Robinson v. Campbell,, 3 Wheat. i?ep. 221 ; 4 Omd. Rep. 235. United States v. Worsen, 1 GalJis. i?ep. 5, 18 ; 1 Peters's Rep. Circ. Co. 484. Palmer v. Allen, 7 Crunch's Rep. 550 ; 2 Cond. Rep, 607. 3 Bl. Comm. c. 24, 25j 26, Mr. Chief Justice Marshall delivered the opinion of the court ; and, after stating the case, proceeded as follows : Some preliminary objections have been made by the counsel for the defendants, to the manner in which these questions are brought before the court, which are tp be disposed of before the questions themselves can be considered. It is jsaid that the proceeding was ex parte. The law which empowers this court t«^ take cognisance of questions adjourned from a circuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause. The inquiry, therefore, wliether the parties were properly befea the ciicuit cowtt, cajmot be madcj at this time, ia this place. FEBRUARY TERM, 1825, 3 [Wayman v. Southard.] The defendants also insist, that the judgment, the execution, and the return, ought to be stated, in order to enable this court to decide the ques- tion which is adjourned. But tl^e questions do not arise on the judgment, or the execution ; and, so far as they depend on the return, enough of that is stated to show the court, that the marshal had proceeded according to the late laws of Ken- tucky. In a general question respecting the obligation of these laws on the officer, it is immaterial whether he has been exact, or otherwise, in his observance of them. It is the principle on which the judges were divided, and that alone is referred to this court. In arguing the first question, the plaintiffs contend, that the common law, as modified by acts of congress, and the rules of this court, and of the circuit court by which the judgment was rendered, must govern the officer in all his proceedings upon executions of every description. One of the counsel for the defendants insists, that congress has no (■* . *power over executions issued on judgments obtained by individuals ; '■ and that the authority of the states, on this subject, remains unaffected by the constitution. That the government of the union cannot, by law, regulate the conduct of its officers in the service of executions on judgments rendered in the federal courts; but that the state legislatures retain complete authority over them. The court cannot accede to this novel construction. The constitution concludes its enumeration of granted powers, with, a clause authorizing congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment. That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly con- ferred hy this clause, seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause neither require nor admit of elucidation. The court, therefore, will only say, that no doubt whatever is entertained on the power of congress over the subject. The only inquiry is, how far has this power been exercised .' The thirteeth section of the judiciary act of 1789, c. ,20, describes the jurisdiction of the supreme court, and grants the power to issue writs of prohibition and mandamus, in certain specified cases. The fourteenth sec- tion enacts, " that all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." The seventeenth section authorizes the courts " to make all ne- cessary rules for the orderly conducting business in the said courts ;" and the eighteenth empowers a court to suspend execution, in order to give time for granting a new trial. These sections have been relied on by the counsel for the plaintiffs. '' The words of the fourteenth are understood by the court to comprehend executions. An execution is a writ, which is certainly " agreeable to the principles and usages of law." There is no reason for supposing that the general term " writs," is re- trained by the words, " which may be necessary for the exercise of their 4 SUPREME COURT. ■ [Wayman v. Southard.] respective jurisdictions," to original process, or to process anterior to judg- «gl ments. The jurisdiction of a court is not exhausted by the *rendition -• of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act, to suppose an execution necessary for the exercise o£ jurisdiction. Were it even true, that jurisdiction cquld technically be said to terminate with the judgment, an execution would be a writ neces- sary for the perfection of that which was previously done ; and would, consequently, be necessary to the beneficial exercise of jurisdiction. If any doubt could exist on this subject, the eighteenth section, which treats of the authority of the court over its executions as actually existing, certainly implies, that the power to issue them had been granted in the fourteenth section. The same implication is aflTorded by the twenty-fourth and twenty-fifth sections, both of which proceed on the idea that the power to issue writs of execution was in possession of the courts. So, too, the process act, which was depending at the same time with the judiciary act, prescribes the forms of executions, but does not give a power to issue them. On the clearest principles of just construction, then, the fourteenth section of the judiciary act must be understood, as giving to the courts of the union, respectively, a power to issue executions on their judgments. But this section provides singly for issuing the writ, and prescribes no rule for the conduct of the officer for obeying its mandate. It has been contended, that the thirty-fourth section of the act supplies this deficiency. That section enacts, " that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at com- mon law, in the courts of the United States, in cases where they apply." This section has never, so far as is recollected, received a construction in this court ; but it has, we believe, been generally considered by gentle- men of the profession, as furnishing a rule to guide the court in the forma- tion of its judgment; not one for carrying that judgment into execution. It is " a rule of decision," and the proceedings after judgment are merely ministerial. It is, too, "a rule of decision in trials at common law;" a phrase which presents clearly to the mind the idea of litigation in^court, and could never occur to a person intending to describe an execution, or pro- ceedings after judgment, or the effect of those proceedings. It is true, that if, after the service of an execution, a question respecting the legality of the proceeding should be brought before the court by a regular suit, there ,„-■ would be a trial at common *law ; and it may be said, that the case -I provided for by the section would then occur, and that the law of the state would furnish the rule for its decision. But, by the words of the section, the laws of the state furnish a rule of decision for those cases only " where they apply ;" and the question arises, do they apply to such a case ? In the solution of this question, it will be necessary to inquire whether they regulate the conduct of the officer serving the execution ; for it would be contrary to all principle to admit, that, in the trial of a suit depending on the legality of an oflScial act, any other law would apply than that which had been previously prescribed for the govern- ment of the officer. If the execution is governed by a different rule, then these laws do not apply to a case depending altogether on the regularity of 12 FEBRUARY TERM, 1825. 6 [Wayman v. Southard.] the proceedings under the execution. If, for example, an ofScer take the property of A, to satisfy an execution against B, and a suit be brought by A, the question of property must depend entirely on the law of the state. But if an execution issue against A, as he supposes, irregularly, or if the oiBcer should be supposed to act irregularly in the performance of his duty, and A should, in either case, proceed against the officer, the state laws will give no rule of decision in the trial, because they do not apply to the case, unless they be adopted by this section as governing executions on judgments rendered by the courts of the United States. Before we can assume, that the state law applies to such a case, we must show that it governs the officer in serving the execution ; and, consequently, its supposed application to such a case is no admissible argument in support of the proposition that it does govern the execution. That proposition, so far as it depends on the construction of the thirty-fourth section, has already been considered ; and we think that, in framing it, the legislature could not have extended its views beyond the judgment of the court. The thirty-fourth section, then, has no application to the practice of the court, or to the conduct of its officer, in the service of an execution. The seventeenth section would seem, both from the context and from the particular words which have been cited as applicable to this question, to be confined to business actually transacted in court, and not to contemplate proceedings out of court. The act to ~" regulate processes in the courts of the United States," passed in 1789, has also been referred to. It enacts, " that until farther provision shall be made, and except where by this act, or other statutes of the United States, is otherwise provided, the forms of writs and executions, except their style and modes of process, in the *circuit and district j-^„ courts, in suits at common law, shall be the same in each state re- ■- spectively, as are now used in the supreme courts of the same. This actj so far as respects the writ, is plainly confined to form. But form, in this particular, it has been argued, has much of substance in it, because it consists of the language of the writ, which specifies precisely what the officer is to do. His duty is prescribed in the writ, and he has only to obey its mandate. This is certainly true, so far as respects the object to be accomplished, but not as respects the manner of accomplishing it. In a fieri facias, for example, the officer is commanded to make of the goods and chattels of A B the sum of money specified in the writ ; and this sum must, of course, be made by a sale. But the time and manner of the sale, and the particular goods and chattels which are liable to the execution, unless, indeed, all are liable, are not prescribed. To " the forms of writs and executions," the law adds the words, " and modes of process." These words must have been intended to comprehend something more than " the forms of writs and executions." We have not a right to consider them as mere tautology. They have a meaning, and ought to be allowed an operation more extensive than the preceding words. The terra is applicable to writs and executions, but it is also apphcable to every step taken in a cause. It indicates the progressive course of the business from its commencement to its termination ; and " modes of process" may be considered as equivalent to modes or manner of proceeding. If, by the word process, congress had intended nothing more than a general phrase, which might comprehend every other paper issuing out of a court, B 13 7 SUPREME COURT. ^Wayman v. Southard.] the language would most probably have resembled that of the first section, where the word "processes," not "process," is used in that sense. JBiit the introduction of the word " modes," and the change of the word " pro- cesses" for " process," seem to indicate that the word was used in its more extensive sense, as denoting progressive action ; a sense belonging to the noun in the singular number, rather than in the sense in which it was used in the first section, which is appropriate to the same noun in its plural number. This construction is supported by the succeeding sentence, which is in these words : " and the forms and modes of proceedings, in causes of equity, and of admiralty and maritime jurisdiction, shall be according to the course of the civil law." The preceding sentence had adopted the forms of writs and executions, and the modes of process, then existing in the courts of the several states, #oi as a rule for the federal courts, " in suits at common law." *And this ■' sentence adopts " the forms and modes of proceedings" of the civil law, " in causes of equity, and of admiralty and maritime jurisdiction." It has not, we believe, been doubted, that this sentence was intended to regulate the whole course of proceeding, " in causes of equity, and of ad- miralty and maritime jurisdiction." It would be difficult to assign a reason for the solicitude of congress to regulate all the proceedings of the court, sitting as a court of equity, or of admiralty, which would not equally re- quire that its proceedings should be regulated when sitting as a court of 'common law. The two subjects were equally within the province of the legislature, equally demanded their attention, and were brought together to their view. If, then, the words making provision for each, fairly admit of an equally extensive interpretation, and of one which will effect the object that seems to have been in contemplation, and which was certainly desira- ble, they ought to receive that interpretation. " The forms of writs and executions, and modes of process in suits at common law," and "the forms and modes of proceedings, in causes of equity, and of admiralty and mari- time jurisdiction," embrace the same subject, and both relate to the progress of a suit from its commencement to its close. It has been suggested, that the words " in suits at common law," restrain the preceding words to proceedings between the original writ and judgment. But these words belong to " writs and executions," as well "as to " modes of process," and no more limit the one than the other. As e3&cutions can issue only after a judgment, the words " in suits at common law," must apply to proceedings which take place after judgment. But the legal sense of the word suit adheres to the case after the rendition of the judgment, and it has been so decided. Co. lAtt. 291. 8 Co. 53,6. This construction is fortified by the proviso, which is in these words : " provided, that on judgments, in any of the cases aforesaid, where different kinds of executions are issuable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election to take out a capias ad satis- faciendum in the first instance, and be at liberty to pursue the same, until a tender of the debt and costs in gold or silver shall be made." The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting clause. The object of this proviso is to enable the creditor to take out a capias ad satisfaciendum in the first in- 14 FEBRUARY TERM, 1825. 8 [Wayman v. Southard.] stance, and to pursue it until the debt be satisfied, notwithstanding any thing to the contrary in the enacting clause. It *is perfectly clear, that j-^j, this provision is no exception from that part of the enacting clause L which relates to the "forms of writs and executions," and can be an excep- tion to that part only which relates to the " modes of process." It secures the right to elect the capias ad satisfaciendum, in the first instance, where that writ was at all issuable under the law of the state ; and to pursue it until the debt and costs be tendered in gold or silver. It relates to the time and circumstances under which the execution may issue, and to the conduct of the officer while in possession of the execution. These, then, are objects which congress supposed to be reached by the words " modes of process," in the enacting clause. This law, though temporary, has been considered with some attention, because the permanent law has reference to it, and adopts some of its pro- visions. It was continued until 1792, when a perpetual act was passed oh the subject. This, whether merely explanatory, or also amendatory of the original act, is the law which must decide the question now before the court. It enacts, " that the forms of Writs, executions, and other proce^, except their style, and the forms and modes of proceeding in suits in those of com- mon law, shall be the same as are now used in the said Courts respectively, in pursuance of the act entitled 'An act to regulate processes in the courts of the United States,' except so far as may have been provided for by the act to establish the judicial courts of the United States ; subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, or to such regulations as the supreme court of the United States shall think ;proper, from time to time, by rule, to pre- scribe to any circuit or district court concerning the same." This act is drawn with more deliberation -than the original act ; and re- moves, so far as respects the question now under consideration, some doubt which might be entertained in relation to the correctness with which the act of 1789 has been construed. It distinguishes very clearly between the forms of writs, and all other process of the same character, and the forms and modes of proceeding in suits, and provides for both. It is impoiSsible to confound " the forms of writs, executions, and other process," whiph are to be attested by a judge, and to be under the seal of the court from which they issue, with " the forms and modes of proceeding in suits." They are distinct subjects. The first describes the paper which issues from the court, and is an authority to the officer to do that which it commands ; the last embraces the whole progress of the suit, and every transaction in it, from its commencement to its termination, which has been already shown not to take place until the *judgnlent shall be satisfied. It may, then, and r*.%(\ ought to be understood, as prescribing the conduct of the officer in >■ the execution of process, that being a part of " the proceedings" in the suit. This is to conform to the law of the state, as it existed in September, 1789. The act adopts the state law as it then stood, not as it might afterwards be made. A comparison of the proviso to the permanent aCt, with that which had been introduced in the temporary act, will serve to illustrate the idea, that the proceedings under the execution were contemplated in the enacting clause, and supposed to be prescribed by the words " modes of process," in the one law, and " modes of proceeding," in the other. 15 10 SUPREME COURT. [Wayman v. Southard.] The proviso to the act of 1789, authorizes the creditor to sue out a capias ad satisfaciendum in the first instance, and to continue it " until a tender of the debt in gold and silver shall be made." The proviso to the act of 1798 omits this last member of the sentence. The appraisement laws existing in some of the states, authorized a debtor taken in execution to tender property in discharge of his person ; and this part of the proviso shows an opinion, that the enacting clause adopted this privilege, and an intention to deprive him of it. The enacting clause of the acf; of 1793, adopts the state law, to precisely the same extent with the enacting clause of the act of 1789 ; and the omission of the clause in the proviso which has been mentioned, leaves that part of the adopted law, which allows the creditor to discharge his person by the tender of property, in force. The subject was resumed in 1793, in the act entitled "An act in addi- tion to the act entitled an act to establish the judicial courts of the United States." The eighth section enacts, " that, where it is now required by the laws of any state, that goods taken in execution on a writ of fieri facias shall be appraiised previous to the sale thereof, it shall be lawful for the appraisers appointed under the authority of the state, to appraise goods taken in execu- tion on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court held under the authority of the state ; and it shall be the duty of the marshal, in whose custody such goods may be, to summon the appraisers in like manner as the sheriff is, by the laws of the state, required to summon them ;" " and if the appraisers, being duly summoned, shall fail to attend and perform the duties required of them, the marshal may proceed to sell such goods with- out an appraisement." This act refers to the appraisement laws of the respective states, which #,^1 were in force at the time of its passage, without distinguishing *be- ■' tween those which were enacted before, and those which were en- acted after, September, 1789. The fact, however, is understood to be, that they were enacted previous to that time, generally as temporary laws, and had been continued by subsequent acts. They required, so far as they have been inspected, that appraisers should be appointed by the local tribunals to appraise the property taken in execution. Supposing laws of this descrip- tion to have been adopted by the act of 1789, the regular mode of proceed- ing under them would have been,, for the courts of the United States, respectively, to appoint appraisers, who should perform the same duty with respect to executions issuing out of the courts of the union, as was per- formed by appraisers appointed under state authority, with respect to executions issuing out of the courts of the state. It was unquestionably much more convenient to employ that machinery which was already in operation, for such a purpose, than to construct a distinct system; it was more convenient to employ the appraisers already existing in the several counties of a state, than to appoint a number of new appraisers, who could not be known to the courts making such appointments. Accordingly, the section under consideration does not profess to adopt the appraisement laws of the several states, but proceeds on the idea that they were already adopted, and authorizes the officer to avail himself of the agency of those persons who, had been selected by the local tribunals, to appraise property taken in execution. Had these laws been supposed to derive their authority 16' FEBRUARY TERM, 1825. 11 [Wayman v. Southard.] to control the proceedings of the courts of the United States, not from being adopted by congress, but from the vigour imparted to them by the state legislatures, the intervention of congress would have been entirely unneces- sary. The power which was competent to direct the appraisement was competent to appoint the appraisers. The act, passed in 1800, " for the relief of persons imprisoned for debt," takes up a subject on which every state in the union had acted previous to September, 1789., It authorizes the marshal to allow the benefit of the prison rules to those who are in custody under process issued from the courts of the United States, in the same manner as it is allowed to those who are imprisoned under process issued from the courts of the respective states. Congress took up this subject in 1792, and provided for it by a temporary law, which was continued from time to time, until the permanent law of 1800. It is the only act to which the attention of the court has been drawn, that can countenance the opinion, that the legislature did not consider the pro- cess act as regulating the conduct of an officer in the service of executions. It may be supposed, that, in adopting the state laws as furnishing the rule for proceedings in suits at *common law, that rule was as applicable p^n to writs of capias ad satisfaciendum as of fieri facias ; and that the ■• marshal would be as much bound to allow a prisoner the benefit of the rules under the act of congress, as to sell upon the notice, and on the credit prescribed by the state laws. The suggestion is certainly entitled to consideration. But were it true, that the process acts would, on correct construction, adopt the state laws which give to a debtor the benefit of the rules, this single act of superfluous legislation, "which might be a precaution suggested by the ddicacy of the subject, by an anxiety to insure such mitigation of the hardships of impri- sonment, as the citizens of the respective states were accustomed to see, aiid to protect the officer from the hazard of liberating the person of an im- prisoned debtor, could not countervail the arguments to be drawn from every other law passed in relation to proceedings on executions, and from the omission to pass laws, which would certainly be requisite to direct the conduct of the officer, if a rule was not furnished by the process act. But there is a distinction between the cases, sufficient to justify this par- ticular provision. The jails in which prisoners were to be confined did not belong to the government of the union, and the privilege of using them was ceded by the several states, under a compact with the United States. The jailers were state officers, and received prisoners committed under pro- cess of the courts of the United States, in obedience to the laws of their respective states. Some doubt might reasonably be entertained, how far the process act might be understood to apply to them. The resolution of congress under which the use of the state jails was obtained, " recommended it to the legislatures of the several states, to pass laws, making it expressly the duty of the keepers of their jails to receive, and safe keep therein, ail prisoners committed under the authority of the United States, until they shall be discharged by due course of the laws thereof." The laws of the states, so far as they have been examined, con- form to this resolution. Doubt might well be entertained of permitting the prisoner, under this resolution and these laws, to have the benefit of the rules. The removal of such doubts seems to have been a prudent pre- caution. The case of Palmer v. Allen, 7 Crmch's Rep. 550, 2 Cord.. Rep. 607, Vol. VI.— 3 b 2 17 i2 SUPREME COURT. [Wayman v. Southard.] may be considered, at first sight, as supporting the opinion, that the acts for regulating processes in the courts of the United States do not adopt the laws of the several states, as they stood in September, 1789, as the rule by which »jg-| the officers of the federal courts are to be governed in the *service -• of process issuing out of those courts ; but, upon an examination of that case, this impression will be removed. In that case, as appears from the statement of the judge who delivered the opinion of this coiirt, Palmer, as deputy marshal, arrested Allen on a writ sued out of the district court of Connecticut, by the United States, to recover a penalty under a statute of the United States. BaU was demanded, and, not being ^ven, Allen was committed to prison. For this commits ment Allen brought an action of trespass, assault and battery, and false imprisonnaent, in the state court. Palmer pleaded the whole matter in justification, and, upon demurrer, the plea was held insufficient. The judg- ment of the state court w'as brought before this court by writ of error, and was reversed ; this court being of opinion that the plea W'as a goqd bar to the action. The demurrer was sustained in the state court, because, by an act of the legislature of Connecticut, the officer serving process similar to that which was served by Palmer, must, before committing the person on whom it is served to jail, obtain a mittimus from a magistrate of the state, authorizing such commitment ; and that court was of opinion that the act of congress liad adopted this rule so as to make it obligatory on the office of the federal court. This court was of opinion, that the plea made out a sufficient justification, and, therefore, reversed the judgment of the state court. This judgment of reversal is to be sustained, for several reasons, without impugning the general principle, that the acts under consideration adopt the state laws as they stood in September, 1789, as giving the mode of proceeding in exe- cuting process issuing out of the courts of the United States. The act of 1792, for regulating processes in the courts of the United States, enacts, that " the modes of proceeding in suits, in those of common law, shall be the same as are now used in the said courts respectively, in pursuance of the act entitled " An act to regulate processes in the courts of the United States." The endorsement of a mittimus on the writ had never been used, as appears by the opinion in the case of Palmer v. Allen, in the courts of the United States for the district of Connecticut. In connection with this fact, the provision of the act of 1792 subjects the modes of proceeding under the laws of the state, " to such alterations and additions as the said courts, respectively, shall, in their discretion, deem expedient." The uniform course of that court, from its first establishment, dispensing with this mitti- mus, may be considered as the alteration in this particular which the court was authorized by law to make. It may very well be doubted, too, whether the act of congress which *141 *conforms the modes of proceeding in the courts of the union to J thpse in the several states, requires the agency of state officers, in any case whatever not expressly mentioned. The laws of the union may permit such agency, but it is by no means clear that they can compel it. In. the case of the appraisement laws already noticed, it was deemed necessary to pass a particular act, authorizing the marshal to avail himself pf tjie appraisers for the state ; and the same law dispenses with the appraisement, 18 FEBRUARY TERM, 1825. 14 [Wayman v. Southard.] should they fail to attend. If the mittimus should be required by the act of congress, it should be awarded by a judge of the United States, not by a state magistrate, in hke manner as an order for bail, in doubtful cases, is endorsed by a judge of the United States, in cases where the state law requires such endorsement to be made by the judge or justice of the court from which the process issues. The mittimus is a commitment for want of bail ; and a magistrate who awards it, decides, in doing so, that it is a case in which bail is demandable. But in the particular case of Allen, that question was decided by the law. The act of congress, act of 1799, ch. 120, s. 65, required that bail should be given. No application to the judge was necessary. The officer was compelled to arrest the body of Allen, and to detain him in custody until bail should be given. This act, therefore, dispenses with any order of a judge requiring bail, and with a mittimus authorizing a commitment for the want of bail. The officer was obliged to detain the body of Allen in custody, and this duty was best performed by committing him to jail. These reasons operated with the court as addi- tional to the opinion, that the law of Connecticut, requiring a mittimus in civil cases, was, in its terms, a peculiar municipal regulation imposing a restraint on state officers, which was not adopted by the process act of the United States, and was a provision inapplicable to the courts of the union, a provision which could not be carried into effect according to its letter. The reasons assigned by the court for its decision in the case of Palmer V. Allen, so far from implying an opinion that the process act does not adopt the laws of the several states as giving a rule to be observed by the officers in executing process issuing from the courts of the United States, recognises the general principle, and shows why that case should be taken out of its operation. So far as the process act adopts the state laws, as regulating the modes of proceeding in suits at common law, the adoption is expressly confined to those in force in September, 1789. The act of congress does not recognise the authority of any laws of this description which might be afterwards passed by the states. The system, as it then stood, is adopted, " subject, however, to such alterations and additions as the *said courts re- |-»,- spectively shall, in their discretion, deem expedient, or to such re- '• gulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same." This provision enables the several courts of the union to make such im- provements in its forms and modes of proceeding as experience may sug- gest, and especially to adopt such state laws on this subject as might vary to advantage the forms and modes of proceeding, which prevailed in Sep- tember, 1789. The counsel for the defendants contend, that this clause, if extended beyond the mere regulation of practice in the court, would be a delegation of legis- lative authority, which congress can never be supposed to intend, and has not the power to make. But congress has expressly enabled the courts to regulate their practice by other laws. The seventeenth section of the judiciary act of 1789, ch. 20, enacts, " that all the said courts shall have power" " to make and esta- blish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States ;" and the seventh section of the act, " in addition to the act, entitled An act to 19 15 SUPREME COURT. [Wayman v. Southard.] establish the judicial courts of the United States," act of 1793, ch. 22, s. 7, details more at large the powers conferred by the seventeenth section of the judiciary act. These sections give the court full power over all matters of practice ; and it is not reasonable to suppose that the process act was in- tended solely for the same object. The language is different ; and the two sections last mentioned have no reference to state laws. It will not be contended that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate, to others, powers which the legislature may rightfully exercise itself. Without going farther for examples, we will take that^ the legality of which the counsel for the defendants admit. The seventeenth section of the judiciary act and the seventh section of the addi- tional act, empower the courts respectively to regulate their practice. It certainly will not be contended that this might not be done by congress. The courts, for example, may make rules, directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended that these things might not be done by the legislature, without the intervention of the courts ; yet it is not alleged that the power may not be conferred on the judicial department. »,/j1 The line has not been exactly drawn which separates those *im- -l portant subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details. To determine the character of the power given to the courts by the process act, we must inquire into its extent. It is expressly extended to those forms and modes of proceeding in suits at common law, which were used in the state courts in September, 1789, and were adopted by that act. What, then, was adopted .'' We have supposed that the manner of proceeding under an execution was comprehended by the words "forms and modes of proceeding in suits" at common law. The writ commands the officer to make the money for ■which judgment has been rendered. This must be understood as directing a sale, and, perhaps, as directing a sale for ready money. But the writ is entirely silent with respect to the notice ; with respect to the disposition which the officer is to make of the property between the seizure and sale ; and, probably, with respect to several other circumstances which occur in obeying its mandate. These are provided for in the process act. The modes of proceeding used in the courts of the respective states are adopted for the courts of the union, and they not only supply what is not fully ex- pressed in the writ, but have, in some respects modified the writ itself, by prescribing a more indirect and circuitous mode of obeying its mandate than the officer could be justified in adopting. In some instances, the officer is permitted to leave.the property with the debtor, on terms prescribed by the law, and in others, to sell on a prescribed credit, instead of ready money. Now, suppose the power to alter these modes of proceeding, which the act conveys in general terms, was specifically given. The execution orders the officer to make the sum mentioned in the writ out of the goods and chattels of the debtor. This is completely a legislative provision, -which leaves the officer to exercise his discretion respecting the notice. That the legislature vaey transfer this discretion to the courts, and enable them to make rules for its regulation, will not, we presumfij be questioned. So, with respect to the 20. FEBRUARY TERM, 1825. 16 [Wayman v. Southard.] provision for leaving the property taken by the officer in the hands of the debtor, till the day of sale. He may do this, independent of any legislative act, at his own peril. The law considers the property as his, for the pur- poses of the execution. He may sell it, should it be produced, in likfe manner as if he had retained it in his personal custody, or may recover it, should it be withheld from him. The law makes it his duty to do that which he might do in the exercise of his discretion, and relieves him from the responsibility attendant on the exercise of discretion, in a case where his course is not exactly prescribed, and he deviates from that which is most direct. *The power given to the court to vary the mode of pro- p»^_ ceeding m this particular, is a power to vary minor regulations, *- which are within the great outlines marked out by the legislature in direct- ing the execution. To vary the terms on which a sale is to be made, and declare whether it shall be on credit, or for ready money, is certainly a more important exercise of the power of regulating the conduct of the officer, but is one of the same principle. It is, in all its parts, the regulation of the conduct of the officer of the court in giving effect to its judgments. A general superintendence over this subject seems to be properly within the judicial province, and has been always so considered. It is, undoubtedly, proper for the legislature to prescribe the manner in which these ministerial offices shall be performed, and this duty will never be devolved on any other department without urgent reasons. But, in the mode of obeying the man- date of a writ issuing from a court, so much of that which may be done by thejudiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide, that there is some difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its courts. The difference between the departments undoubtedly is, that the legisla- ture makes, the executive executes, and the judiciary construes the law ; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily. Congress, at the introduction of the present government, was placed in a peculiar situation. A judicial system was to be prepared^ not for a conso- lidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws, which, though originating in the .same great prin- ciples, had been variously modified. The perplexity arising from this state of things was much augmented by the circumstance that, in many of the states, the pressure of the moment had produced deviations from that course of administering justice between debtor and creditor, which consisted, not only with the spirit of the constitution, and, consequently, with the views of the government, but also with what might safely.be considered as the permanent policy as well as interest of the states themselves. The new government could neither entirely disregard these circumstances nor con- sider them as permanent. In adopting the temporary mode of proceeding with executions then prevailing in the several states, it was proper to pro- vide for that return to ancient usage, and just as well as wise principles, which might be expected from those who had yielded to a supposed *necessity in departing from them. Congress, probably, conceived p^g that this object would be best effected by placing in the courts of '- the union the power of altering the " modes of proceeding in suit? it com- mon law," which includes the modes of proceeding in the execution of 21 18 SUPREME COURT. [Wayman v. Southard.] their judgments, in the confidence that, in the exercise of this power, the ancient, permanent, and approved system, would be adopted by the courts, at least as soon as it should be restored in the several states by their respective legislatures. Congress could not have intended to give permanency to temporary laws of which it disapproved ; and, therefore, provided for their change in the very act which adopted them. But the objection which gentlemen make to this delegation of legislative power seems to the court to be fatal to their argument. If congress cannot invest the courts with the power of altering the modes of proceeding of their own officers, in the service of executions issued on their own judg- ments, how will gentlemen defend a delegation of the same power to the state legislatures? The state assemblies do not constitute a legis- lative body for the union. They possess no portion of that legislative power which the constitution vests in congress, and cannot receive it by delegation. How, then, will gentlemen defend their construction of the thirty-fourth section of the judiciary act ? From this section they derive the whole obligation which they ascribe to subsequent acts of the state legislatures over the modes of proceeding in the courts of the union. This section is unquestionably prospective as well as retrospective. It regards future as well as existing laws. If, then, it embraces the rules of practice, the modes of proceeding in suits ; if it adopts future state laws to regulate the conduct of the officer in the performance of his official duties, it dele- gates to the state legislatures the power which the constitution has conferred on congress, and which, gentlemen say, is incapable of delegation. As construed by the court, this section is the recognitibn of a principle of universal law ; the principle that in every forum a contract is governed by the law with a view to which it was made. But the question respecting the right of the' courts to alter the modes of proceedings in suits at common law, established in the process act, does not arise in this case. That is not the point on which the judges at the circuit were divided, and which they have adjourned to this court. The question really adjourned is, whether the laws of Kentucky respecting executions, passed subsequent to the process act, are applicable to executions which issue on judgments rendered by the federal courts.' If they be, their applicability must be maintained, either in virtue of he thirty-fourth section of the judiciary act, or in virtue of an original ^^n-i *inherent power in the state le^slatures, independent of any act of -' congress, to control the modes of proceeding in suits depending in the courts of the United States, and to regulate the conduct of their officers in the service of executions issuing out of those courts. That the power claimed for the state is not given by the thirty-fourth section of the judiciary act, has been fully stated in the preceding part of this opinion. That it has not an independent existence in the state legisla- tures, is, we think, one of those political axioms, an attempt to demonstrate which would be a waste of argument not to be excused. The proposition has not been advanced by counsel in this case, and will, probably, never be advanced. Its utter inadmissibility will at once present itself to the mind, if we imagine an act of the state legislature for the direct and sole purpose of regulating proceedings in the courts of the union, or of their officers in executing their judgments. No gentleman, we believe, will be so extravagant as to maintain the efficacy of such an act. It seems not much less extravagant, to maintain, that the practice of the federal courts, 22 FEBRUARY TERM, 1825. 19 [Wayman v. Southard.] and the conduct of their officers, can be indirectly regulated by the state legislatures, by an act professing to regulate the proceedings of the state courts, and the conduct of the officers who execute the process of those courts. It is a general rule that what cannot be done directly from defect of power, cannot be done indirectly. The right of congress to delegate to the courts the power of altering the modes (established by the process act) of proceedings in suits, has been already stated ; but, were it otherwise, we are well satisfied that the state legislatures do not possess that power. This opinion renders it unnecessary to consider the other questions ad- journed in this case. If -the laws do not apply to the federal courts, no question concerning their constitutionality can arise in those courts. Practice. Cases on the forms of process and proceedings in the courts of the United States. 1 Cond. Bep. 141. Vattier v. Hinde, 5 Peters, 398. United States v. Halstead, 10 Wheat. 51 ; 6 Cond. Bep. 22. Ross §■ King v. Duval et al, 13 Peters, 45. Bears v. Houghton, 9 Peters, 329. The United States v. Knight, 14 Peters, 302. j}mis v. Smith, 16 Peters, 303. Duncan v. Darst et al, 17 Peters, 209; 1 Howard S. C. R. 301. Lex locL Decisions in the courts of the United States upon the operation of the lex lod. All rights to personal property are regulated by the laws of the country where the testator tived ; but the suits for those rights must be governed by the laws of that country in which the tribunal is placed. Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319, 324; 1 Cond. Eep. 547. The law of a place Where a contract is made, is, generally speaking, the law by which the contract is expounded ; but the right of priority forms no part of the contract, it is rather a personal privilege, dependent on the law of the place where the property lies, and where the court sits which is to decide the caSte Harrison v. Sterry et al., 5 Cranch, 289, 298 ; 2 Cond. Hep. 260. *In the administration of the estate of a deceased person, the assets are always rtnn distributed according to the dignity of the debt, as regulated by the law of the country L where the representative of the deceased acts, and from which he derives his powers, not by the law of the country where the contract was made. Ibid. 299. In an action by the endorsee against the endorser of a foreign bill of exchange, the defend- ant is liable for damages, according to the law of the place where the bill was endorsed. Slw cum V. Pomery, 6 Cranch, 221 ; 2 Cond. Eep. 351. The title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate. United States v. Crossby, 7 Cranch, 15 ; 2 Cond. Eep. 437. Clarke v. Graham, 6 Wheat. 577; 5 Cond. Rep. 192. It is so unusual for a legblature to employ itself in framing rules which are to operate only on contracts without their jurisdiction between persons residing without their jurisdiction, that courts can never be justified in putting such a construction upon their words, if they admit any other interpretation which is rational and not too much strained. Bond et al. t. Jay, 7 Cranch, 350; 2 Cond. Rep. 525. The general rule is, that remedies, in respect to real property, are to be pursued according to the lex loci rei sitae. Robinson v. Campbell, 3 Wheat. 212 ; 4 Cond. Rep. 235. A discharge under a foreign bankrupt law, is no bar to an action^ in the courts of this coun- try, on a contract made here. M'MUlan v. M'Neill, 4 Wheat. 209; 4 Cond. Rep. 424. The title to, and disposition of, real property, by deed or will, must be exclusively subject to the laws of the country where it is situated. Kerr v. Devisees of Moon, 1 Wheat. 565 ; 5 Cond. Rep. 682. Even in the case of personal property, a person, claiming under a will proved in one state, cannot intermeddle with or sue for the effects of a testator in another state,' unless the will be proved in that other state, or unless he be permitted to do so by some law of that state. Ibid. Letters testamentary give to the executors no authority to sue for the personal estate of the testator, out of the jurisdiction of the power by which the letters were granted. Ibid, It is an acknowledged principle of law that the title and disposition of real property is ex- clusively subject to the laws of the country where it is situated, which can alone prescribe tho 23 20 SUPREME COURT. [Wayman v. Southard.] mode by which a title to it can pass from one person to another. M'Cornich et al. v. SuUwamt et al., 10 Wheat. 192; 6 Cond. IBie^.poat. In a contract for the loan of money, the law of the place where the contract is made is to govern, and it is immaterial that the loan was to be secured by a mortgage upon lands in an- other state. De Wolff -v. Johnson et al., 10 Wheat. 367, 6 Cond. Rep. yosf. The laws of the state in which the land lies, must determine as to the title, and as to the ;rules respecting evidence in ejectment. Darby's Lessee v. Mayer et al., 10 Wheat. 465 ; 6 Cond. Rep. post. The law of a place where a contract is made, governs as to the validity of it, its nature and construction ; but the remedy on such contract must be pursued according to the law of the place where the suit is brought. Van Eeimsdyk v. Kame et al., 1 Gallis. 371. If a contract be void by the law of the place where it is made, it is void everywhere ; and what is a discharge of a contract in the place where it is made shall be of equal avail in every other place. lUd. To "this rule there is an exception, when the contract is to be executed in a place different from that where it is made; for the law of the place of the execution will in such case apply. Ibid. A contract made in a foreign country, and to be governed and discharged by its lavra, can- not be discharged by a mere positive regulation of another country, to which the parties have not bound themselves. Ibid. 377. *oi 1 *It is a general rule that rights and remedies respecting lands are to be regulated J and governed by the law of the place where the land is situated. Society for the Pro- pagation of the Gospel, &rc. v. Wheeler et al., 2 Gallis. 105. The general rule of law is, that contracts are to be construed according to the iaw of the place where they are made and to be executed ; contracts respecting lands lying in another state form no necessary exception to the rules, for these, in many instances, both as to rights and remedies, are governed by the lex loci contractus., Gilman v. Brown et al., 1 Mason, 191. Where a party executes in one state a contract and conveyance of land lying in another, it seems most reasonable that the contract should be construed according to the law of the place where it is executed, than that he should be held to reserve all the rights and remecdies which the law of the state where the land lies must give, and the law of the place of the contract would deny. Ibid. A contract is governed by the law of the country where it is made, and it may be enforced by foreign tribunals according to their ovm forms of proceeding, but in such a manner as to give effect to the contract according to the laws which gave it validity. Camfranque v. Bur- nell, 1 Wash. C. C. R. 340. WiUmgs et al v. Comequa, 1 Peters's C. C. R. 301. The law of a country where a contract is made is the law of the contract wherever per- formance is demanded; and the same Ia\q Time." Cook v. Arnham, 3 P. Wms. 283. Bond v. Hopkins, 1 Scho. L ^ and Liefr. 413. Hovenden v. Lord Annesley, 2 8cho. and Lefr. 607. 1 Vern. 196, 362. 1 Ch. Rep. 105. 3 Atk. 225. 2 Ves. Sen. 226. 2 Atk. 83. Cholmondeley v. Clinton, 2 Jacobs and'Walker, 138. Cle- mentson v. Williams, 8 Crunch's Rep. 72. 3 Cond. Rep. 37. Shipp v. Miller, 2 Wheat. Rep. 324. 4 Cond. Rep. 132. Mr. Chief Justice Marshall delivered the opinion of the court. This suit was brought by the appellant, Elmendorf, in the court for the seventh circuit and district of Kentucky, to obtain a conveyance of lands held by the defendants under a prior grant, and under entries which are also older than the entry of the plaintiff. As the defendants do not adduce their entries, and rely entirely on their patent, the case 47 49 SUPREME COURT. [Elmendorf v. Taylor.] depends on the validity of the plaintifPs entry. That was made in April, 1784, and was afterwards, in July of the same year, explained, or amended, so as to read as follows : " Walker Daniel enters eight thousand acres, beginning at the most south- westwardly corner of Dun- can Rose's survey of eight thousand acres, between Floyd's Fork and Bull Skin ; thence along his westwardly line to the corner ; thence the same course with James Kemp's line, north two degrees west, nine hundred and sixty-four poles to a survey of John Lewis for twenty- two thousand acres ; thence with Lewis's line, and from the beginning south seven degrees west, till a line parallel with the first line will in- clude the quantity." As this entry begins at " the most south-westwardly corner of Dun- can Rose's survey of eight thousand acres, between Floyd's Fork and Bull Skin," the first inquiry is, whether this survey was at the time an object of sufficient notoriety to give validity to an entry calling for one of its corners as a beginning. It is not pretended that the survey itself had acquired this notoriety ; but the plaintiff contends that it had be- come a matter of record ; and that subsequent purchasers were, on that account, bound to know its position, in like manner as they are bound to know the position of entries. The land law prescribes that surveys shall be returned to the office, and recorded in a record book, to be kept for that purpose by the principal surveyor, within three months from the time of their being made. They are to be returned to the land office in twelve months from their date, during which time the surveyor is forbidden to give a copy to any person other than the owner. It is contended by the defendants, that this prohibition to give a copy of the plot and certificate of survey, excludes the idea of that notoriety which is ascribed to a record. Though inserted for preserva- #cn-i tion *in a book which is denominated a book of record, it does J not" become, in fact, a record, until it shall partake of that cha- racteristic quality of a record, on which the obligation to notice it is founded, being accessible to all the world. Were even an inspection of the book demandable as matter of right, wTiicb the defendants deny, that inspection would, they say, from the nature of the thing, be of no avail, unless a copy was also attainable. They insist, therefore, that the notoriety of these surveys is not to be implied from the fact that the three months had expired, during which they were directed by law to be recorded. The plaintiff" contends, that the book of surveys has every character- istic of a record, except that the surveyor is restrained from granting copies, until the time limited by law for the return of surveys to the land office shall ha-ve expired ; and denies that the notoriety attached to a record is dependent entirely on the right to demand a copy of it. He maintains the right to inspect it, and insists that this right has been considered by the legislature as giving sufficient notice to all persons interested in the property to enter a caveat against the issuing of a patent, from which he implies that it is intended as a record to give notice, although a copy of it cannot be obtained. Were this question now for the first time to be decided, a consider- able contrariety of opinion respecting it would prevail in the court ; but it will be unnecessary to discuss it, if the point shall appear to be settled in Kentucky. 48 FEBRUARY TERM, 1825. 50 [Elmendoif v. Taylor,] This court has uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. This course is founded on the principle, supposed to be universally recognised, that the judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that govern- ment. Thus, no court in the universe, which professed to be governed by principle, would, we presume, undertake to say, that the courts of Great Britain, or of France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction, than to depart from the words of the statute. On this principle, the construc- tion given by this court to the constitution and laws of the United States is received by all as the true construction ; and on the same principle, the construction given by the courts of the several states to the legislative acts of those states, is received as true, unless they come in conflict with the constitution, laws, or treaties of the United States. *If, then, this question has been settled in Kentucky, we must r^^, suppose it to be rightly settled. L The defendants contend, that conflicting opinions have been given in the state, and that the question is still open ; while the plaintiff" insists, that the real question, that is, the notoriety of a survey after being made three months, has never been determined in the negative. The first case of which we have any knowledge, is Sinclair v. Single- ton, Hughes', 92. The decision of the court was in favour of the vali- dity of an entry which calls for the lines of a survey. . The court is not in possession of the book in which the case is reported ; but, judging from the references made to it in subsequent cases, the entry must have been made within twelve, and, probably, within three months of the date of the survey. The next case in which the question was directly made, is Key v. Matson, Hardiv, 70, decided in the fall term of 1806. The survey had not been made three months, at the date of the entry ; and the court determined, that it was not an object of notoriety. A rehearing was moved for, and, according to the course of the court of appeals of Ken- tucky, errors were assigned in the original decree. The first was, that " the court has decided, that an entry dependent on a survey not made three months, is void ; whereas, according to law, and former decisions, such an entry ought to have been valid." The court adhered to its first decision, and used expressions, which, though applied to a case in which the entry was made before the ex- piration of three months after the survey on which it depended, yet in- dicated the opinion, that an entry, made after the expiration of three months from the date of the survey, would be equally invalid. Moore v. Whitlege, Hardin, 89, and Respass v. Arnold, Ifardin, 115, decided in the spring of 1807, were on the authority of Key v. Matson, and were also cases in which the entries vvere made a few weeks after the surveys. The case of Cartwright v. Collier, Hardin, 179, decided in the spring of 1808, was one in which the entry was made only fifteen days after the survey. In Ward v. Lee, 1 Bibb, 27, decided in Vol. VI.— 7 E 49 51 SUPREME COURT. [Elmenilorf v. Taylor.] 1808, the entry called for a survey which had been made twenty-three days, of the return of which, to the office, there«was no proof. The judge adds, " if it had been returned and recorded, yet no person was entitled to a copy." This last observation is indicative of the opinion, that a survey, though recorded, would not become an object of noto- riety, until a copy of it was demandable ; but it was made in a case in which that point did not occur. The case of Cleland's heirs v. Gray, decided at the same time, is of the same character. The survey was made sixteen days before the entry which called to adjoin it. The *521 *J"*^§® ^^y^> " '*• ^® clear, that no description in this certificate of -I Evan Shelby's survey can aid Weeden's entry, because it does not appear that the certificate was even made out, or deposited in the surveyor's office, at the date of Weeden's entry. But, if it had been recorded, yet it was inaccessible to holders of warrants. They were not entitled to a copy until twelve months after the making of the sur- vey ; nor was the surveyor himself bound to record it in less than three months after the survey was made." In the case of Galloway v. Neale et al., 1 Bibb, 140, the judge who delivered the opinion of the court, states the law thus : " If the holder of a warrant adopts a survey previously made upon another warrant as the basis of a location, he must prove the notoriety of the survey at that period, otherwise his location cannot be supported. If he has adopted such survey at a period earlier than that at which the law has opened the record thereof for copies, he must prove its notoriety by evidence aliunde." This plain declaration of the opinion of the court on this point, was, however, made in a case in which it did not arise. The survey had preceded the entry which called for it, more than twelve months. The cases of Davis v. Bryan, 2 Bibb, 113, and Davis v. Davis, 2 Bibb, 137, decided in the spring of 1810, were, each of them, ca*ses in which the surveys preceded the entries calling for them, less* than three months. It is, then, true, that from 1806 to 1810, inclusive, the .prevailing opinion of the court of Kentucky was, that an entry could i derive no aid from the description contained in the plat and certificate of a sur- vey for which it called, until that survey had been made twelve inonths ; but, it is also true, that this opinion has been advanced only in cases in which the point did not occur. The first case in which the point actually occurred, was Garson v. Hanway, 3 Bibb, 160. The entry was made on the 9th of February, 1784, and called for a survey made on the 15th of February, 1783. The entry was supported on the principle, that the plat, and certificate of survey, constituted a part of it. In delivering the opinion of the court, the judge said, " when the survey has been so long made, that the law requires it to be of record, it will be presumed to be so, and a . call for its lines, in an entry, will render it a part of the description of such entry." At the preceding term, before the same judges, the case of Bush v. Jamison, 3 Bibb, 118, was argued, and the court determined, that an entry could not be aided by the description contained in a survey which had been made only seven days prior to the entry which called 50 FEBRUARY TERM, 1825. 53 [Elmendorf v. Taylor.] *to adjoin it. In giving its opinion, the court says, " how far a j-^co subsequent adventurer would have been bound by a description '- given in the survey of its beginning corner, if the survey had been of record, is not material to inquire; for there is no proof that the survey was, in fact, of record ; and, as the law did not require that it should have been recorded at the date of the entry, a presumption that it was, cannot be indulged, according to any rule of probability, or on any principle recognised in former adjudications of this court." These cases, decided so near each other, by the same judges, show clearly, by the terms in which they are expressed, that the distinction between a survey, neither recorded in fact, nor in presumption of law, was in the mind of the court ; and that its former adjudications were considered. Reed's heirs v. Dinwiddie, 3 Marsh. Rep. 185, was decided in the year 1820. In that case, an entry called for a survey which had been made six months, and the court determined, that the person claiming under this entry might avail himself of the notoriety contained in the certificate of survey, " which, from its date, must have been of record." Jackman's heirs v. Walker's heirs, 3 Lilt. Rep. 100, is the last case which has been cited. It was decided in 1823. The surveys were made about ten months before the entry, which called to adjoin them, and the court allowed to the entry all the aid which could be derived from the description contained in the next certificate of survey ; be- cause, " from the length of time they had been made before the date of the entry in question, the law required them to be of record, and, of course, they must be presumed to be so." From the year 1813, then, to the present time, the courts of Ken- tucky have uniformly decided, that a survey must be presumed to be recorded at the expiration of three months from its date ; and that an entry dependent on it is entitled to all the notoriety which is possessed by the survey. We must consider the construction as settled finally in the courts of the state, and that this court ought to adopt the same rule, should we even doubt its correctness. We think, then, that the entry under which the plaintiff claims, is aided by the notoriety of the surveys which it calls to adjoin, if those surveys have been made three months anterior to its date. This depends on the question whether it is to date from April or July, 1784. The defendants insist that the amendment, or explanation, of the first of July does not change the ground originally occupied, and is, therefore, not to be considered as having any influence on the date , of^ the entry, or as connecting it with the surveys mentioned in the amendment or explanation. *We cannot think so. This amendment would be seen by r^g^ subsequent locators, and would give them as full notice that the ■- entry adjoined the surveys of Duncan Rose, James Kemp, and John Lewis, as they would have received had the original entry been made on that day. Were it then to be conceded that the original entry, calling for Greenville Smith's line, instead of James Kemp's, would have been construed to cover the same ground which it now covers, still we perceive no substantial reason for refusing to the change made in its terms any advantage belonging to the date of that change. We think, then, for the purpose of the present inquiry, the entry is 51 54 SUPREME COURT. [Elmendorf v. Taylor.] to be considered as if made on the 1st of July, 1784, and is entitled to all the notoriety of the surveys for which it calls. This being established, we do not understand that any controversy remains on the question of notoriety. Some of the objects called for in the surveys are so well known, as to fix incontrovertibly the beginning of the entry made by Walker Daniel ; and its validity is not questioned on any other ground. The validity of the plaintiff's entry being established, it remains to consider the other objections which are made to a decree in his favour. 2. It is contended, that he is a tenant in common with others, and ought not to be permitted to sue in equity, without making his co-te- nants parties to the suit. This objection does not affect the jurisdiction, but addresses itself to the policy of the court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the court itself* and is subject to its discretion. It is not, like the description of parties, an inflexible rule, a failure to observe which turns the party out of court, because it has no jurisdiction over his cause ; but, being introduced by the court itself, for the purposes of justice, is susceptible of modification for the promotion of those pur- poses. In this case, the persons who are alleged to be tenants in com- mon with the plaintiffs, appear to be entitled to a fourth part, not of the whole tract, but of a specially described portion of it, which may or may not interfere with the part occupied by the defendants. Neither the bill nor answers allege such an interference, and the court ought not, without such allegation, to presume it. Had the decree of the cir- cuit court been in favour of the plaintiff, and had this objection to it been deenied sufficient to induce this court to reverse it, and send back the case for the examination of this fact, it could never have jus- tified a dismission of the bill without allowing the plaintiflfan opportu- ^cc-i nity *of showing that he was the sole owner of the lands in dis- > J putCn In addition to these observations, it may be proper to say, that the rule which requires that all persons concerned in interest, however remotely, should be made parties to the suit, though applica- ble to most cases in the courts of the United States, is not applicable to all. In the exercise of its discretion, the court will require the plaintiff to do all in his power to bring every person concerned in in- terest before the court. But, if the case may be completely decided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be a resident of some other state, ought not to prevent a decree upon its merits. It would be a misapplication of the rule, to dismiss the plaintiff's bill because he has not done that which the law will not enable him to do. 3. The third point in the defence is, the length of time which has elapsed since the plaintiff's equitable title accrued. His patent was issued on the 11th of February, 1794, and those of the defendants are of prior date. His bill was filed on the 28th of December, 1815. Several of the defendants, in their answers, claim the benefit of the length of time. From the earliest ages, courts of equity have refused their aid to 52 FEBRUARY TERM, 1825. 55 [Elmendorf v. Taylor.] , those who have neglected, for an unreasonable length of time, to assert their claims, especially where the legal estate has been transferred to purchasers without notice. Although the statutes of limitations do not, either in England, or in these states, extend to suits in' chancery; yet the courts in both countries have acknowledged their obligation. Their application, we believe, has never been controverted ; and in the recent case of Thomas v. Harvie's heirs, ante, p. 44, decide'd at this term, it was expressly recognised. But, the statute of limitations, which bars an ejectment after the lapse of twenty years, constitutes no bar to a writ of right, even where the tenant counts on his own seisin, until thirty years shall have elapsed. Whether a court of equity considers an equitable claim to land as barred when the right of entry is lost, or will sustain a bill as long as the mere right may be asserted, is a ques- tion of some difficulty, and of great importance. The analogy of a bill in equity to actions founded on a right of entry, seems to derive some title to consideration, from the circumstance, that the plaintiff does not sustain his claim on his own seisin, or that of his ancestor, but on an equity not necessarily accompanied by seisin, whereas seisin is an indispensable ingredient in a writ of right. But the case must depend upon precedent, and if the one rule or the other has been positively adopted, it ought to be respected. • In the case of Jenner v. Tracy, 3 P- Wms. 287, in a note, the *defendant demurred to a bill to redeem mortgaged premises, of r^na which the defendanthad been in possessionmorethantwentyyears, '- and the demurrer was sustained; the court observing, that " as twenty years would bar an entry or ejectment, there was the same reason for allowing it to bar a redemption," It is added, that " the same rule was agreed in the case of Belch v. Harvey, by the Lord Talbot." In 3 Atk. Rep. 225, the court expressed an opinion unfavourable to a de- murrer in such a case, because the plaintiff ought to be at liberty, in his replication, to show, that he is within the exceptions of the statute; but supported the bar when pleaded. The same principle is recognised in 3 Mk. Rep. 313. The rule appears to have been laid down in 1 Ch. Cas., and to have been observed ever since. In 3 Johns. Ch. Rep. chancellor Kent said, " It is a well-settled rule, that twenty years' possession by the mortgagee, without account or acknowledgment of any subsisting mortgage, is a bar to a redemption, unless the mortgagor can bring himself within the proviso in the statute of limitations." These decisions were made on bills to redeem mortgaged premises ; but as no reason can be assigned why an equity of redemption should be barred in a shorter time than any other equity, they appear to us to apply with equal force to all bills asserting equitable titles. We have seen no dictum asserting that the rule is not applicable to otner equi- table rights,, and we should not feel justified in drawing a distinction which has never heretofore been drawn. But we think the rule has been applied to equitable rights generally. In the 2d vol. of Eq. Cas. Mr. tit. "Length of Time," it is said generally, " that possession for more than twenty years, under a legal title, shall never be disturbed in equity." The case of Cook v. Arn- liam, 3 P. Wms. 283, was a bill brought to supply the want of a sur- render of copyhold estate to the use of the will ; and it was objected, e2 53 56 SUPREME COURT. [Elmendorf v. Tajlor.J that the application to the court had been unreasonably delayed. The lord chancellor said, that " the length, of time was not above fourteen years, which, as it would not bar an ejectment, so neither could it bar a bill in equity." The case of Bond v. Hopkins et al., 1 Sch. and Lef. 413, was a suit brought by a person claiming to be the heir, to set aside a will alleged to be obtained by fraud, to obtain possession of title-papers, and to remove impediments out of the way in a trial at law. Length of pos- session was set up as a bar to the relief prayed for in the bill ; and the question, which was discussed at the bar by very eminent counsel, was profoundly and deliberately considered by Lord Redesdale. The tes- tator died in November, 1754, and the bill was filed in June, 1792, so ^(■r,-t *that thirty-eight years had elapsed between the death of the tes- -■ tator and the filing of the bill. As this time was not sufficient to bar a writ of right, no question could have arisen respecting the act of limitations, had the rule of granting relief in equity depended on the ability of the plaintiff" to maintain a writ of right. But the rule was clearly understood, both at the bar and by the court, to be, that the equitable rule respecting length of time had reference to twenty years, the time during which the right of entry was preserved, not to the time limited for maintaining a writ of right. In the very elaborate and very able opinion given by the chancellor, in this case, in which he investi- gates thoroughly the principles which govern a court of equity in its decisions on the statute of limitations, it is not insinuated that it acts in any case from analogy to a writ of right, but is assumed as an ac- knowledged and settled principle that it acts from analogy to a writ of ejectment. In this case, a suit had been instituted by John Bond, the grandfather of the plaintiff", as early as 1755, and a decree pronounced in 1770. The full benefit of this decree was not obtained, and John Bond took forcible possession of a part of the property, of which he was dispossessed by order of the court, on a bill for that purpose, brought by the defendant. The said John Bond died in prison, in 1774, having first devised the property in dispute to his son Thomas, then an infant, for life, with remainder to his first, and other sons, in strict set- tlement. Soon after his death, an ejectment was brought by the de- fendant, to recover part of the property in possession of Bond; and in 1776, a bill was filed by Thomas Bond, then a minor, to enjoin the de- fendants from proceeding in their ejectment, and to have the will deli- vered up. Various orders were taken ; and in June, 1792, an original bill, in the nature of a bill of revivor, was filed by Thomas Bond, and his eldest son Henry. In discussing this case, so far as respected length of time, no doubt was entertained that the plaintiffs would have been barred of all relief in equity, by a quiet acquiescence in the possession of the defendants for twenty years. It was a strong case of fraud, but an acquiescence of twenty years would have closed the court of equity against the plaintiff's. This was not questioned; but it was insisted that the pendency of suits, from the year 1755, when John Bond, the son and heir of the testator, returned from America, had preserved the equity of the plaintiff's, unaff'ected by the lapse of time ; and of this opinion vvas the court. The case of Hovenden v. Lord Annesly, 2 Sch. and Lef. 607, was a bill filed in May, 1794, to set aside a conveyance made in July, 1726, 54 FEBRUARY TERM, 1825. 57 [Elmendorf v. Taylor.] alleged to have been fraudulently obtained. There were some circum- stances on which the plaintiff relied, as relieving his case from the *laches justly imputable to him for permitting such a length of p^ro time to elapse; but they need not be noticed, because they were L deemed insufficient by the chancellor, and the bill was dismissed. In discussing this point, I- expressions of the law would lead to absurd, unjust or inconvenient consequences, such a con- struction should be given as to avoid such consequences, if from the whole purview of the law, and giving eflect to the words used, it may fairly be done. Ibid. 400, per Washington, J. A penal statute is never to be applied to previous acts, unless such construction is unavoida- ble. United States v. Hall et al, 6 Cranch, 171, 174 ; 2 Cond. Kep. 340. The spirit as well as the letter of a statute must be respected; and where the whole context nf the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent. Durousseau v. The United States, 6 Cranch, 307, 314 ; 2 Cond. Rep. 380. The intention of the legislature is to be searched for in the words which the legislature has employed to convey it. The Paulina's Cargo v. The United States, 7 Cranch, 52 ; 2 Cond. Rep. 411. Should the court conjecture that an act, not expressly forbidden, and which is in itself inno- cent, might be a preliminary step to a violation of the law, and ought therefore to be punished, for the purpose of effecting the legislative intention, it would certainly transcend its own duties and powers, and create a rule, instead of applying one already made. Ibid. 61. It is so unusual for a legislature to employ itself in framing rules which are to operate only on contracts without their jiirisdiction, between persons residing without their jurisdiction, that courts can never be justified in putting such a construction upon their words, if they admit of any other interpretation which is rational and not too much strained. Bond et al. v. Jay, 7 Cranch, 350 ; 2 Cond. Rep. 525. In cases depending on the statutes of a state, and more especially those relating to titles to land, the federal courts adopt the construction of the state, where that construction is settled and can be ascertained. Polk's lessee v. Wendall et al., 9 Cranch, 87 ; 3 Cond. Rep. 286. Arguments founded upon hardship will be entitled to great weight when the words of a sta- tute are obscure and open to construction ; but can never sanction a construction at variance with the manifest meaning of the legislature, expressed in plain and unambiguous language. Evans v. Jordan et al; 9 Cranch, 2D3 ; 3 Cond. Rep. 358. In the construction of the statutory or local laws of a state, it is frequently necessary to recur to the history and situation of the country, to ascertain the reason as well as meaning of their provisions, to enable a court to apply the different rules for construing statutes. Preston v. B-nwder, 1 Wheat. 115, 121 ; 3 Cond. Rep. 508. Vol. VI.— 8 57 61 SUPREME COURT. [Elmendorf v. Taylor,] Although a case may be within the mischief, it affords no good reason for construing a penal law by equity, so as to extend it to cases not within the correct and ordinary meaning of the expressions of the law. United Slates v. Shelden, 2 Wheat. 119, 121 ; 4 Cond. Rep. 62. Whatever is done in fraud of a law is done in violation of it. The William King, 2 Wheat. 148, 153; 4 Cond. Rep. 71. The title of an act cannot control its words, but may furnish some aid in showing what was the mind of the legislature. United States v. Palmer et al., 3 Wheat. 610, 631 ; 4 Cond. Kep. 352. Though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The words of a statute are not to be narrowed to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature had obviously used them, would comprehend. United States v. Wiltber- ger, 5 Wheat. 76, 94; 4 Cond. Rep. 593. To determine that a case is within the intention of a statute, the language must authorize the construction. It would be dangerous to carry the principle that a case which is within the *fi91 ■"^^^'"'^ "' mischief of a statute is within its provisions, so far as to punish a *crimcs J not enumerated within the statute, because it is of equal atrocity or kindred character with those which are enumerated. Ibid. 96. It is not sufficient to withdraw a case from the express prohibition of one section of an act, that already the same oifence is punished by a different penalty in another section. If the wording of both sections clearly embraces the same case, which is to be held nugatory ? There is no principle of law which authorizes the rejection of either. The forfeiture must be deemed cumulative in such cases, unless the legislature has created some direct or constructive excep- tion. The Industry, 1 Gallis. 114. Courts are bound to construe penal statutes strictly, and not to extend them beyond their obvious meaning by strained inferences; but, on the other hand, they are bound to ihterpret them according to the manifest import of the words, and to hold all cases within the words and the mischiefs, to be within the remedial influence of the statute : and this is what is under- stood by expounding a statute liberally as to the offence. Ibid. Subsequent laws, respecting the same subject-matter, when repugnant to prior laws, repeal them. The Argo, 1 Gallis. 150. A repeal of a statute by implication is not to be favoured. But when the subsequent statute is inconsistent with the former, and the two cannot be reconciled ; or where the latter is on the same subject-matter with the former, and introduces some new qualifications or modifications, the two cannot stand together. United States v. One Case of Hair Pencils, 1 Paine, 400. Affirmatives in statutes that introduce new laws, imply a negative of all that is not in the purview ; so that a law directing a thing to be done in a certain matter, implies that it shall not be done in any other manner. Ibid. The rule that penal statutes are to be construed strictly, means that they ought not to be extended, by their spirit or equity, to other offences than those which are clearly described and provided for : but courts are not prevented by this rule from inquiring into the intention of the legislature, Tlie Enterprise, 1 Paine, 32. When an act of congress employs a technical term of the common law, recourse must be had to that code for its explanation. United States v. Magill, 1 Wash. C. C. R. 463. The preamble to a statute is to be regarded, only to ascertain the construbtion to be given to an ambiguity in the enacting clause. Hurst v. Hurst, 1 Wash. C. C, R, 56, Whenever a statute of the United States uses a technical term, which is known, and its meaning clear)y ascertained by the common or civil law, from one or the other of which it is obviously borrowed, it is proper to refer to the source whence it is taken for its meaning. United States v. Jones, 3 Wash, C, C, R, 309, The rules for the construction of statutes are the same in courts of equity as in courts of common law. Lessee of Talbot v. Simpson, 1 Peters's C. C, R, 188, In construing an explanatory statute, the construction should be confined strictly to the letter. Sawyer's lessee v. Shannon, 1 Overt. 465. In doubtful cases, usages may be safely recurred to, to ascertain the meaning of the legisla- ture, Polk's lessee v. Hill et al., 2 Overt. 118. Where English statutes, such for instance as the statute of frauds, and the statutes of limi- tations, have been adopted into our own legislation, the known and settled construction of these statutes by English courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority. Pennodc et al. v. Dialogue a Peters, 18. Where the question of the construction of the statutes of a state has been settled by any judicial decision in the state where the land lies, the supreme court of the United States upon 58 FEBRUARY TERM, 1825. 62 [Elmendoif v. Taylor.] the uuiform principles adopted by it, would recognise that decision as part of the local law. Gardner v. Collins, 2 Peters, 85. ' The uniform rule of this court, with respect to the titles to real property, is to apply the same rule which is applied in state tribunals in like cases. Inglis v. Tke Trustees of the Sailor's Snug Harbour, 3 Peters, 187. 'After a case was decided in the circuit court for the district of East Virginia, a case r:.r>n was decided in the court of appeals of the state, in which the same question on the exe- L "" cution law of the state of Virginia was elaborately argued, and deliberately decided. That deci- sion was, that the right to take out an elegit is not suspended by suing out a writ of fieri facias, and consequently, that the lien of the judgment continues pending the proceedings on that writ. The supreme court, according to its uniform course, adopts the construction of the act which is made by the highest court of the state. United Siaies'v. Morrison, 4 Peters, 129. There is no principle better established and more uniformly adhered to in this court, than that the circuit courts, in deciding on titles to real property in the different states, are bound to decide precisely as the state courts ought to do. The rules of property and of evidence, whether derived from the laws or adjudications of the judicial tribunals of the state, furnish the guides and rules of decision in those of the union, in all cases to which they apply, where the consti- tution, treaties or statutes of the United States, do not otherwise provide. Hinde et ux. t. Vattier, 5 Peters, 398. The legislature must be presumed to use words in their known and ordinary signification, unless that sense be repelled by the context. The " common law" is constantly used in con- tradistinction to the statute law. Lessee of Levy v. M'Cartee, 6 Peters, 102. This court have uniformly adopted the decisions of the state tribunals, respectively, in the construction of their statutes. This has been done as a matter of principle, in all cases where the decision of a state lands in another. ^ Vol.. VI.— 9 p2 fi5 71 SUPREME COURT. [M'Cormick v. Sullivant.] APPEAL from the circuit, court of Ohio. The appellants filed their bill in equity in the court below, setting forth, that William Crawford, deceased, the father of the female appel- lants, being, in his life time, a colonel in the Virginia line, on continen- tal establishment, and, as such, entitled to the quantity of six thousand six hundred and sixty-six and two thirds acres of land, to be laid off between the Scioto and Little Miami rivers, on the north west side of the river Ohio, departed this life, having first duly made and published his last will and testament, bearing date the 16th of June 1782, where- by he devised all his estate, not otherwise disposed of by said will, to be equally divided between his three children, John Crawford, and the female complainants, and their heirs for ever. That this will was proved and recorded in Westmoreland county, in the state of Pennsyl- *721 *^^"'^' ^"^ the 10th of September in the same year. That a -■ warrant for the above quantity of land was afterwards issued in the name of the said John Crawford, as heir at law of his father, under which the following entries were made : one for eight hundred acres, which was surveyed and patented to Lucas Sullivant, of which quantity four hundred acres are claimed by Bernard Thomson ; another for nine hundred and fifty-five and two third acres, which was surveyed and patented to John Armat, but then claimed by William Winship; another for nine hundred and fifty-six acres, patented to some person unknown, but claimed by Samuel Finley; another for nine hundred and fifty-five acres, patented to some person unknown, but believed to be claimed and possessed by Lucas Sullivant. The bill then proceeds to interrogate the above parties, who are made defendants, severally, as to their knowledge of the iabove will, and of the title of the female complainants, and requires of them to set forth and describe the lands severally claimed by them, from whom they purchased, at what time, and for what price the same were pur- chased, and when the purchase money was paid. The prayer is for a conveyance, by each defendant, of two thirds of the land claimed by them respectively, and for possession. The answer of the heirs of Winship states, that the land to which they claim title was purchased, for a valuable consideration, of Tho- mos Armat, by their father! to whom a conveyance was made in the year 1807. That a bill was filed by the present complainants, against the said Thomas Armat, in the district court of Ohio, exercising the powers and jurisdiction of a circuit court, for the land now in contro- versy, to which the said Armat filed his answer, asserting himself to be a bona fide purchaser of the land, for a valuable consideration, and without notice, and that, the cause coming on to be heard, the bill was dismissed without costs, after which decree, the purchase was made of Armat by the defendant's father. They insist upon, and pray to be protected by the said decree. Finley answers, and alleges himself to be a bona fide purchaser, for a valuable consideration, of five hundred acres, part of the nine hun- dred and fifty-six acres mentioned in the bill, from one Beauchamp, who claimed as assignee of Dyal, who was assignee of John Crawford, for which he paid, and received a patent, before notice of the claim of the plaintiffs, or ©■f the will of William Crawford. The heirs of TtwropsoA filed, a plea in bar, allegiiig, t&at the com- m FEBRUARY TERM, 1825. 72 [M'Coraiick v. SuIIivant.] plainants, in the year 1804, filed their bill in the district court of Ohio, exercising the powers and jurisdiction of a circuit court, against B. Thompson, their ancestor, under whom they claim, setting forth the ♦same title, and, substantially, the same matters, as in their p^„„ present bill, to which the said Thompson answered, and the com- •- plainants replied, and upon a hearing of the cause the bill was dis- missed with costs, which decree is in full force, &c. SuUivant filed a similar plea, and the bill was dismissed, as to him, by agreement. A general replication was put in to the answers of Finley and Win- ship's heirs, and a special replication to the plea in bar, setting forth the record in the former suit, and alleging, that the proceedings in that suit were coram non judice, the record not showing that the complain- ants and defendant in that suit, were citizens of dififerent states. Upon the hearing, the bill was dismissed, and an appeal taken to this court. The case was argued by Mr. Doddridge, for the appellants ; and by Mr. Scott, for the defendant. Cases cited for the appellants : Turner v. The Bank of North Ame- rica, 4 Dail. 8. 1 Cond. Rep. 205. Bingham v. Cabot, 3 DalL 382. 1 Cond. Rep. 170. Mossman v. Higginson, 4 DalL 12. 1 Cond. Rep. 210. Abercrombie v. Dupuis, 1 Crunch, 343. 1 Cond. Rep. 327. Wood V. Wagnon, 2 Crunch, 1. 1 Cond. Rep. 335. Mr. Scott cited : Virginiu Rev. Code, 1769, c. 3, p. 159. Toller's Exec. 72. Robertson, Wills, 50. 11 Vin. Mr. 58, 59. 1 Vern. 391. 1 Ld. Raym. 251. 3 Mass. Rep. 518. 16 Mass. Rep. 441. Kerr v. Moon, 9 Wheat. 565, 570. 5 Cond. Rep. 682. Lewis v. Madison, 1 Munf. 303. Kempe v. Kennedy, 5 Crunch, 173. 2 Cond. Rep. 223. Mr. Justice Washington delivered the opinion of the court ; and, after stating the case, proceeded as follows : The question which the plea of Thompson's heirs, and the answer of Winship's heirs, presents, is whether the general decree of dismission of the bill in equity, filed by the present plaintiffi in the federal district court of Ohio, against the ancestor of these defendants, under whom they respectively claim title, is a bar of the remedy which is sought to be enforced by the present suit ? The reason assigned by the replica- tion, why that decree cannot operate as a bar, is, that the proceedings in that suit do not show that the parties to it, plaintiffi and defendants, were citizens of different states, and that, consequently, the suit was I coram non judice, and the decree void. ' But this reason proceeds upon an incorrect view of the character and jurisdiction of the inferior courts of the United States. They are all of limited jurisdiction ; but they are not, on that account, inferior courts, in the technical sense of those words, whose judgments, taken alone, *are to be disregarded. If the jurisdiction be not alleged in the |-^„^ proceedings, their judgments and decrees are erroneous, and may, •- upon a writ of error, or appeal, be reversed for that cause. But they are not absolute nullities. This opinion was strongly intimated, if not decided, by this court, in the case of Kempe's lessee v. Kennedy, 5 Crunch's Rep. 185, 2 Cond. Rep. 223; and was, afterwards, con- firmed by the decision made in the case of Skillern's executors v. May's 67 74 SUPREME COURT. [M'Cormick v. Sullivant.] executors, 6 Cranch's Rep. 267, 2 Cond. Rep. 366. That suit came before this court upon a writ of error, where the decree of the court below was reversed, and the cause remanded for further proceedings to be had therein. After this, it- was discovered by that court, that the jurisdiction was not stated in the proceedings, and the question was made, whether that court could dismiss the suit for that reason ? This point, on which the judges were divided, was certified to the supreme court, where it was decided, that the merits of the cause having been finally decided in this court, and its mandate only requiring the execu- tion of its decree, the court below was bound to carry that decree into execution, notwithstanding the jurisdiction of that court was not alleged in the pleadings. Now, it is very clear, that, if the decree had been considered as a nullity, on the ground that jurisdiction was not stated in the proceedings, this court could not have required it to be executed by the inferior court. We are, therefore, of opinion, that the decree of dismission relied upon in this case, whilst it remains unreversed, is a valid bar of the present suit as to the above defendants. The next question is presented by the answer of Finley. At the death of William Crawford, in the year 1782, he was entitled to a cer- tain quantity of land to be laid off between the rivers Scioto and Little Miami, under a promise contained in an act of the legislature of Vir- ginia. His interest in this land was purely an equitable one. After his death, a warrant to survey the same was granted to John Crawford, his only son and heir at law, who assigned to one Dyal a certain tract which had been surveyed under the warrant, and the defendant claims a part of the tract so surveyed, under Beauchamp, who purchased from Dyal. He alleges, in his answer, that he made the purchase bona fide, paid the purchase money, and obtained a grant for the land, before he had notice of the will of William Crawford, or of the claim of his daughters under it. Crawford's will, under which the female complainants claim title, was proved in some court in the county of Westmoreland, in the state of Pennsylvania, and was there admitted to record ; but it does not ap- pear, nor is it even alleged, to have been at any time proved in the state of Virginia, or in the state of Ohio, where the lands in controversy lie. ^-r-, *At the time of the death of William Crawford, lands lying in -I Virginia were transmissible by last will and testament, in writ- ing, the same being signed by the testator, or by some person in his presence, and by his direction, and if not wholly written by himself, being attested by two or more credible witnesses, in his presence. But to give validity and eflect to such will, it was necessary that it should be duly proved, and admitted to record, in the court of the county where the testator had his residence at the time of his decease, or, if he had no place of residence in that state, then in the court of the county where the land devised lay, or it might be proved in the general court, where the land was of a certain value. Subsequent to the death of William Crawford, an act of assembly was passed, which permitted authenticated copies of wills, proved in any other state of the union, or abroad, to be offered for probate in the general court, or in the cir- cuit, county, or corporation court, where the whole of the estate lies. By the law of the state of Ohio, lands lying in that state may be de- 68 FEBRUARY TERM, 1825. 75 [M'Cormick v. Sullivant.] vised by last will and testament, or writing; but, before such will can be considered as valid in law, it must be presented to the court of com- mon pleas of the county where the land lies for probate, and be proved by at least two of the subscribing witnesses. If the will be proved, and recorded in another state, according to the laws of that slate, an au- thenticated copy of the will may be offered for probate in the court of the county where the land lies, without proof by the witnesses ; but it is liable to be contested by the heir at law, as the original might have been. It is an acknowledged principle of law, that the title and disposition ^f real property is exclusively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one person to another. For the establishment of this doctrine, it will be sufficient to cite the cases of the United States v. Crosby, 7 Crunch's Rep. 115, 3 Cond. Rep. 437; and Kerr v. Moon, 9 Wheat. Rep. 565, 5 Cond. Rep. 682. It follows, therefore, that no estate could pass to the daughters of William Crawford, under his will, until the same should be duly proved according to the laws of Virginia, where the land to which he was entitled lay, at the time of his death, or of the territory of Ohio, after the cession by Virginia to the United States, under the ordinance of congress of the I3th of July, 1787, or according to the law of that state, which has already been recited. The probate of the will in the state of Pennsylvania, gave it no validity whatever in respect to these lands, as to which this court is bound to consider Crawford as having died intestate, and, consequently, that they descended to John Crawford, his only son and heir at law, according to *the law of Virginia, as it stood in the year 1782. The court r^a below, then, could do no less than dismiss the bill as against this •- defendant, upon the ground, that the complainants had shown no title whatever, legal or equitable, to the land in controversy. This court might be induced to yield to the application of the counsel for the appellants, that, in case of an affirmance, it should be without prejudice, if we could perceive, from the record, that the complainants could, in another suit, present their case under a more favourable as- pect. But this the answer of Finley will not permit us to anticipate ; for, even if an authenticated copy of Crawford's will should hereafter be offered for probate, and admitted to record iii the state of Ohio, still, the title to be derived under it could not be permitted to overreach the legal title of this defendant, founded, as it is, upon an equitable title, acquired bona fide, and for a valuable consideration paid, which pur- chase, payment, and acquisition of legal title, were made before he had either legal or constructive notice of the will, or of the claim of the daughters, for we are all of opinion, that the probate of the will in Pennsylvania cannot be considered as constructive notice to any person, of the devise of the lands in controversy. The decree of the court below must, therefore, be affirmed generally, with costs. 69 76 SUPREME COURT. Wright, Plaintiff in error v. Denn, ex dem. Page, Defendant in error. 10 Wheaton'a Reports, 204. J. P. by his last will, after certain pecuniary legacies, devised as follows : " item, I give and bequeath unto my loving wife M. ail the rest of my lands and tenements whatsoever, where- of I shall die seised in possession, reversion, or remainder, provided she has no lawful issue. Item, I give and bequeath unto M., my beloved wife, whom I likewise constitute, make, and or- dain, my sole executrix of this my last will and testament, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed," &c. " and I make my loving friend, H. J., executor of this my will, to take care, and see the same performed, according to my true intent and meaning," &c. The testator died seised without issue, and, after the death of the testator, his wife M. married one G. W. by whom she had lawful issue. Held, that she took an estate for Ufe only, under the will of her husband, J. P. II^'V *^^^^^ there are no words of limitation to a devise, the general rule of law is, that the J devisee takes an estate for life only, unless from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. To make a pecuniary legacy a charge upon lands devised, there must be express words, or a plain implication from the words of the will. General rule as to what words will carry a fee. An introductory clause, showing an intention to dispose of the whole of the testator's estate, will not attach itself to a subsequent devising clause, so as to enlarge the latter to a fee. A charge upon lands cannot be created by implication, unless the implication is plain. Effect of the words, " in possession, reversion, or remainder," &c. Where words are used by a testator, which are insensible in the place where they occur, or their ordinary meaniijg is deserted, and no other is furnished by the will, they must be entirely disregarded. The word " tenements," does not carry a fee, independent of other circumstances. ERROR to the circuit court of New Jersey. This was an action of ejectment brought in the court below. The sole question arising upon the state of facts in the cause, was upon the construction of the will of James Page, made on the 15th of February, 1774. By that will, after the usual introductory clause, the testator proceeds as follows : "Item, I give and bequeath unto my beloved sister, Rebecca, one hundred pounds, proclamation money, to be paid in four years after my decease. " Item, I give and bequeath unto my beloved sister Hannah, the sum of fifty pounds, proclamation money, to be paid when she is of age. " Item, I give and bequeath unto my sister Abigail, the like sum of fifty pounds, proclamation money, to be paid when she arrives at age. " Item, I give and bequeath unto my loving wife Mary, all the rest of my lands and tenements whatsoever, whereof I shall die seised, in possession, reversion or remainder, provided she has no lawful issue. " Item, I give and bequeath unto Mary, my beloved wife, whom I likewise constitute, make and ordain, my sole executrix of this my last will and testament, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed ; and 1 do hereby utterly disallow, revoke, and disannul, all and every other former testaments, wills, legacies, and bequests, by me in any ways before named, willed 70 FEBRUARY TERM, 1825. 77 [Wright u. Denn.] and bequeathed, ratifying and confirming tliis, and no other, to be my last will and testament. And I make my loving friend, Henry Jeans, of the county and province aforesaid mentioned, executor of this my will, to take care and see the same performed, according to my true intent and meaning; and for his pains," (leaving the sentence incom- plete.) " In witness whereof," «fcc. (in the common form of attestation.) The testator was seised of the land in controversy at the time of the will, and died seised, without issue, on the 10th day of October, *1774, leaving his wife Mary, the devisee, who, afterwards, married r^r^c, one George Williamson, by whom she had lawful issue still living, L and died in the year 1811. The lessor of the plaintiff is the brother of the testator, and his only heir at law. The defendant claims title to the premises as a purchaser under Mary, the wife of the testator. The title of the testator to the premises was derived from a devise in the will of his father, John Page, dated the 11th of November, 1773. That will, among other things, contained the following clause : " Item, I give and devise unto my son James, one equal half part of my land, (comprising the land in controversy) with all my plantation, utensils, &c. dec. to him, his heirs and assigns, for ever." He then gives the other moiety of the land to his son John, to him, his heirs and assigns. He then bequeaths several legacies to his daughters, Sarah and Mary, and adds, " Item, I give and bequeath to my three daughters, Rebecca, Hannah, and Abigail, Rebecca the sum of fifty pounds, Hannah and Abigail the sum of fifty pounds each of them. Likewise it is my will, that my son James do pay Hannah and Abigail the said sum of fifty pounds each, when they come of age." He then concludes his will by appointing an executor, and revoking all former wills, &c. ; and died soon afterwards. James (the son) left no other real estate than that devised to him by this will. What personal estate he or his father left, at the times of their decease, was not found in the case ; and, therefore, it did not appear whether or not it was sufficient to pay the legacies in their wills. The court below gave judgment for the lessor of the plaintiff, who was the heir at law of the testator, and the cause was brought, by writ of error, to this court. The case was argued by Mr. Wood, for the plaintiff in error; and by Mr. Webster and Mr. Coxe, contra. Cases cited by Mr. Wood : Richardson v. Noyes, 2 Mass. Rep. 59. Doe V. Richards, 3 Term Rep. 359. Willes's Rep. 140. Goodright v. Allen, 2 W. Bl. 1042. Smith v. Tinsall, 2 Salk. 685. 1 Ves. Jun. 440. Prec. in Ch. 430. Alcock v. Sparhawk, 2 Vern. 229. 2 Dall. 131. Chapman's case, Dyer, 333. Kingw.Rumbal, Cro. 7ac. 448. Lambert's Lessee v. Paine, 3 Cranch's Rep. 97, 129, 1 Cond. Rep. 466. Sargent V. Town, 10 Mass. Rep. 305. Lessee of Willis v. Bucker, 2 Binn. 464. Hogan V. Jackson, Coivp. Rep. 299. Grayson v. Atkinson, 1 fVils. Rep. 333. Cooke v. Gerard, 1 Lev. Rep. 212. Ludcock v. Willows, Carther's Rep. 50. 2 Ventr. Rep. 285. Wheeler v. Waldron, Men's Rep. 28. Chester v. Chester. 3 P. Wms. 46. Strode v. Russel, 2 Vern. Rep. 621. Rooke V. Rooke, 2 Vern. Rep. 461. Lutw. Rep. 755. Moore v. Hease- man, Willes's Rep. 152. Green v. Armstead, Hob. 65. Ibbetson v. *Beckvvith, Cas. Temp. Tolb. 157. Loveacre v. Blight, Cowp. 352. p^-g Frogmorton v. Holliday, 1 H. Bl. 540. •■ 79 SUPREME COURT. [Wright ». Denn.] Cases cited for the defendants : Cro. Car. 368, 447, 323. 2 Bl. Rep. 839. 2 Bos. and Pull. 247. 251, per Macdonald, C. B. Dough 736. Cowp. 235, 352, 355. 3 T. R. 356, 359. 5 Bos. and Pull. 349. Mosely, 240. 1 Fern. Rep. 65. 5 T. i?. 558. 1 Bos. and Pull. 558. 2 Fen^r. iJep. 285. 11 Mod. Rep. 103. 3 Wils. Rep. 418. G!76. E^. Rep. 30. 7 res. J?ej9. 541. 3 Dyer, 371. 3 P. Wms. 56. ' 1 East, 220. 8 JoAns. i?e/>. 141. Jackson v. Ball, 10 Johns. Rep. 148. Den u. Allen, 8 Term Rep. 497. Merson v. Blackmore 2 .4<7c. 341. Mr. Justice Story delivered the opinion of the court ; and, after stating the case, proceeded as follows : The principal question arising in this case is, what estate Mary, the wife of James Page, took under his will ; whether an estate for life, or in fee. If the former, then the judgment of the circuit court is to be affirmed ; if the latter, then it is to be reversed. Some reliance has been placed upon the will of John Pagie, the father, to show the predicament of the land in the possession of his son James, and thence to draw aid in the construction of thte will of the latter. Without doubt, James took a fee in the moiety devised to him by his father (which includes the land in controversy); for it is given " to him, his heirs and assigns." But, it is argued, that the land came into his hands charged with the legacies payable to his sisters Hannah and Abigail, and as these legacies were not payable until they came of age, they remained a charge upon the land in the hands of Jame^ at his death. Whether the sisters were of age at his death or not, or had re- ceived their legacies or not, does not appear from the statement of facts, and nothing can be presumed either way. But what is there to show that these legacies were a charge on the land 1 The direction in the will is, that " James do pay Hannah and Abigail the said sum of fifty pounds each when they come of age ;" but it is not said or implied any where in the will, that these legacies shall be a charge on the land. The direction is personal, and must be a charge on the person only, unless it can be shown, from other parts of the will, that the testator intended a charge on the land. A testator may devise lands with a view to legacies, and make them a charge on the land, or on the per- son of the devisee, or on both ; (a) and whether a particular legacy be in either predicament, must depend upon the language of the will. In *8m * *^^ large class of cases, which has been decided on this subject, J and which has principally arisen from questions respecting the quantity of the estate taken by the devisee, the ground assumed has been, that the will must speak expressly, or by fair implication, that the testator intends the legacies to be a charge on the land. When, therefore, the testator orders legacies to be paid out of his lands, or where, subject to legacies, or after payment of legacies, he devises his lands, courts have held the land charged with the legacies upon the manifest intention of the testator. But here there is no such language. There is no direction, that' the devisee shall pay the legacies out of the land. The charge is personal ; and the case falls directly within the authority of Reeves v. Gower, 11 Mod. Rep. 208. (a) See Eoe, ex dem. Peter v. Day, 3 M. and S. 518 ; 5 East's Rep. 87 ; 4 East's Rep. 495. 72 FEBRUARY TERM, 1825. 80 [Wright V. Denn.] We may, then, proceed to the consideration of the will of James Page, inasmuch as that of his father affords no light to guide us in the construction. The grounds mainly relied on to establish that Mary, the wife of the testator, took a fee, are, that the legacies given to his sisters are a charge on his real estate in the hands of his widow; that all the rest of his " lands and tenements," in possession, reversion, or remainder, are given ; that the devise is subject to the proviso, " that she has no lawful issue," which is not a condition merely, but a sub- stitution for an estate intended for his children ; and, finally, that the lands, «&c. are devised to her " freely to be possessed and enjoyed," which words are best satisfied upon the supposition of a fee. Before proceeding to the particular examination of the legal eflfect of these different clauses in the will, it is necessary to state, that, where there are no words of limitation to a devise, the general rule of law is, that the devisee takes an estate for life only, unless, from the language there used, or from other parts of the will, there is a plain intention to give a larger estate. We say a plain intention, because, if it be doubt- ful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule pre- vails. It is not sufficient, that the court may entertain a private belief that the testator intended a fee. It must see, that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favoured by its policy ; though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and un- ambiguous shape. In the present case, there is no introductory clause in the will, ex- pressing an intention to dispose of the whole of the testator's estate. Nor is it admitted, that such a clause, if it were inserted, would so far attach itself to a subsequent devising clause, as per se to enlarge the *latter to a fee, where the words would not ordinarily import it. . ^q. Such a doctrine would be repugnant to the modern as well as ' ancient authorities. The cases of Frogmorton v. Wright, 2 W. Bl. 889. Right V. Sidebottom, Dough 7.59. Child v. Wright, 8 D. and E. 64. Denn v. Gaskin, Coioper, 657. Doe v. Allen, 8 D, and E. 497, and Merson v. Blackmore, 2 Jtk. 341 ; are full to the point. The most, that can be said is, that where the words of the devise admit of pass- ing a greater interest than for life, courts will lay hold of the introduc- tory clause, to assist them in ascertaining the intention. The case of Hogan V. Jackson, Cowper, 297,. admits this doctrine. That case itself did not turn upon the effect of the introductory clause, but upon the other words of the will, which were thought sufficient to carry the fee, particularly the words, " all my effects, both real and personal." The case of Grayson v. Atkinson, 1 JVils. Rep. 333, admits of the same explanation ; and besides, the inheritance was there charged with debts and legacies. There is no doubt, that a charge on lands may be created by impli- cation, as well as by an express clause in a will. But then the im- plication must be clear upon the words. Where is there any such implication in the present will ? The testator has not disposed of the whole of his personal estate, which is the natural fund for the pay- ment of legacies ; non constat, how much or how little he left. For Vol. Vi;— 10 G 73 81 SUPREME COURT. [Wright !). Denn.] aught that appears, the personal estate may greatly have exceeded all the legacies ; and if it did not, that would be no sufficient reason to charge them on the land. It is not a sound interpretation of a will, to construe charges, which ordinarily belong to the personalty, to be charges on the realty, simply because the original fund is insufficient. The charge must be created by the words of the will. Now, from what words are we to infer such a charge in this case ? It is said, from the words " all the rest ;" but, " all the rest" of what ? Certainly not of the personal estate, because the words immediately following are " of my lands and tenements," which exclude the personalty. The words, " all the rest," have then no appropriate meaning in reference to the personal estate, for the connexion prohibits it. Can they then be sup- posed to import " all the rest of my lands, &c. after payment of the legacies," and so be a charge on them ? This would certainly be going much farther than the words themselves authorize, and much farther than any preceding clause requires, or justifies. A charge of legacies on land would not be a devise of the real estate in the ordinary under- standing of men, nor in the contemplation of law. It would make them a lien on, and payable out of, the land ; but it would still be distin- guishable from an estate in the land. But it is sufficient for us to de- clare, that we cannot make these legacies a charge on the land, except *S91 *^^ S^™S beyond, and not by following, the language of the will. -' We must create the charge, and not merely recognise it. The case of Markant v. Twisden, Gilb. Eq. Rep. 30, was much stronger than the present. There the testator had settled all his freeholds on his wife for life, as a jointure ; and by his will he bequeathed several legacies, and then followed this clause, " all the rest and residue of my estate, chattels, real and personal," I give to my wife, who I make sole executrix. But the court held, that the wife did not take the reversion of the jpinture by the devise ; for as the testator had not in the pre- ceding part of the will devised any real estate, there could be no resi- due of real estate, on which the clause could operate. But, admitting that the present legacies were a charge on the lands of the testator, this would not be sufficient to change the wife's estate into a fee. The clearly established doctrine on this subject is, that if the charge be merely on the land, and not on the person of the devisee, then the devisee, upon a general devise, takes an estate for life only. The reason is obvious. If the charge be merely on the estate, then the devisee (to whom the testator is always presumed to intend a bene- fit) can sustain no loss or detriment in case the estate is construed but a life estate, since the estate is taken subject to the encumbrance. But if the charge be personal on the devisee, then if his estate be but for life, it may determine before he is reimbursed for his payments, and thus he may sustain a serious loss. All the cases turn upon this dis- tinction. Canning v. Canning, Moseley's Rep. 240. Loveacres v. Blight, Cowp. Rep. 352. Denn ex dem. Moor v. Mellor, 5 D. and E. 558, and 2 Bos. and Pull. ^7. Doe v. Holmes, 8 D. and E. I. Good- title V. Maddem, 4 Ease's J?ep. 496 ; all recognise it. And Doe and Palmer v. Richards, 3 D. and E. 356, proceeds upon it, whatever ex- ception may be thought to lie to the application of it in that partictilar case. We are then of opinion, that there is no charge of the present legacies on the land : and, if there were, no inference could be drawn 74 FEBRUARY TERM, 1825. 82 [Wright V, Denn.] from this circumstance to ealarge the estate of the wife to a fee, since they are not made a personal charge upon her. The next consideration is, whether the words, " all the rest of my lands and tenements," import a fee. In the first place, this clause is open to the objection, that it is not a residuary clause in the will, for no estate in the lands is previously given, and consequently, if it ope- rates at all on the fee, it gives the entire inheritance, and not a mere residuum of interest. And if a devise of " all the rest and residue of lands," in a clear residuary clause, was sufficient to carry a fee by their own impof t, it would follow, that almost every will containing a resi- duary clause, would be construed, without words of limitation, to pass a fee. Yet, the contrary doctrine has most assuredly been maintained. *In Canning v. Canning, Moseley, 240, the testator devised as fol- p^oo lows : " all the rest, residue and remainder of my messuages, lands, L &c. after my just debts, legacies, &c. are fully satisfied and paid, I give to my executors in trust for my daughters ;" and the question was, whether these words passed an estate in fee, or for life, to the executors. The court decided that they passed a life estate only. The authority of this case was fully established in Moor v. Denn, ex dem. Mellor, 2 Bos. and Pull. 247, in the house of lords, where words equally extensive occurred ; and the authority of this last case has never been broken in upon. The cases, which seem at first view to interfere with and control this doctrine, will be found upon close examination to turn on other points. Thus in Palmer v. Richards, 3 D. and E. 356, where there was a devise of " all the rest and residue of the testator's lands," &c. his legacies and personal expenses being thereout paid, Lord Kenyon admitted, that the words " rest and residue," &c. were not sufficient to carry a fee; but he relied on the subsequent words, "legacies, &c. being there- out paid," which he considered as creating a charge upon the lands in the hands of the devisee, of such a nature as to carry a fee. In this opinion the court concurred; and, though this case has been since questioned, on its own circumstances, its general doctrine remains untouched. So, in the case of Norton v. Ladd, 1 Ludw. 755, 759, where the devise was to A. C, his sister, for life, of all his lands, &c., after the decease of his mother ; then to J. C, his brother, " the whole remainder of all those lands and tenements," given to A. C. for life, if he survived her ; and if not, then " the whole remainder and reversion of all the said lands, &c. to his sister, C. E. and A., and to their heirs for ever ;" the court held, that a fee passed to J. C. under the devise, upon the ground, that taking the whole will, the words "whole remain- der" properly referred to the estate or interest of the testator undis- posed of to his sister, A- C. ; and that the words could not relate to the quantity of lands, which the testator intended to devise to his brother, J. C, for he had plainly devised all his lands to his sister, A. C, and all the lands he had devised to A. C. he had devised to J. C. So that the words naturally and properly had relation to the quantity of estate, which the testator intended to £;ive J. C, that is, all the remainder, which is the same in effect as all his estate. If the words were merely to be referred to theiands he intended to devise to J. C, they would be ineffectual, for it was impossible that he could have any remainder of lands, when he had devised all to A. C; so that they must refer to the estate in 75 83 SUPREME COURT. [Wright V. Denn.] the lands. Such is the substance of the rq|isoning of the court ; upon which it is unnecessary to say more, than that the case turned upon *841 *^^^ supposed incongruity of construing the testator's words J otherwise than as importing the whole remaining interest in the lands, upon all of which lands a life estate was already attached. And the final devise over, which carried a plain fee to the sisters, being a substitution for the former estate to J. C, in the event of his death before the testator, greatly fortifies this interpretation. This case has been much relied on by the plaintiff in error upon the present argument j but it is very distinguishable from that before the court. There, a life estate was given, and the terms " whole remainder," had a natural meaning, as embracing the whole remaining interest. Here, on the contrary, there is no preceding interest given in the real estate, and therefore the terms, " all the rest," are not susceptible of that sense. There, a substituted estate, in fee, was clearly given ; here no clause occurs, leading necessarily to such a conclusion. All that the case in Lutwyche, taken as the fullest authority, establishes, is, that the words " rest and residue" may, in certain connexions, carry a fee.(a) This is not denied or doubted. But then the words attain their force from their juxta-position with other words, which fix the sense, in which the tes- tator has used them. In Farmer v. Wise, 3 P- Wms. 294, the- resi- duary clause was "of all the rest of his estate, real and personal," and the word "estate" has long been construed to convey a fee. This court have carried the doctrine still farther, and adjudged a devise of " all the estate called Marrowbone," to be a devise of the fee, constru- ing the words, not as Avords merely of local description, but of the estate or interest also in the land. Lambert's lessee v. Paine, 3 Crnnch's Rep, 79, 1 Cond, Rep. 466. Murray v. Wise, 2 Vern. Rep. .564, S. C, Prec. in Ch. 246, contained a devise, after a legacy, of all the residue of his real and personal estate, and rests on the same prin- ciple ; as do Beachcroft v. Beachcroft, 2 Vern. Rep. 690, and Ridart v. Paine, 3 Atk. Rep. 486. In Willows v. Lydcott, Carth. Rep. 50, 2 Vent. 285, the residuary devise was to A. and her assigns for ever, which latter words indicate a clear intention to pass a fee. In Gray- son V. Atkinson, 1 Wils. Rep. 333, there was an introductory clause, purporting the intention of the testator to dispose of all his temporal estate, then several legacies were given, and a direction to A. to sell any part of his real and personal estate for payments of debts and lega- cies ; and then the will says, as to the rest " of my goods and chattels, real and personal, moveable and immoveable, as houses, gardens, tene- ments, my share in the copperas works, &c. I give to the said A." Lord Hardwicke, after some hesitation, held it a fee in A., relying upon ^o(.-| *the introductory clause, and the charge of the debts and legacies J on the land, and .upon the language of the residuary clause. Whatever may be the authority of this decision, it certainly does not pretend to rest solely on the residuary clause ; and its containing a mixed devise of real and personal estate, was not insignificant in ascer- taining the testator's intention. It may also be admitted, that the words " lands and tenements," do sometimes carry a fee, and are not confined to a mere local description (fl) Sfe Lord HarJwicke's comments on this case, in Builis v. Gale, 2 Vesey's Rep. 48. 7o FEBRUARY TERM, 1825. 85 [Wright V. Denn.] of t'le property. But, in their ordinary sense, they import the latter only. And when a more extensive signification is given to them in \yilis, it arises from the context, and is justified by the apparent inten- tion of the testator to use them in such extensive signification. The cases cited at the bar reach to this extent, and no farther. Their authority is not denied ; but their application to the present case is not admitted. We may, then, take it to be the general result of the authorities, that the words " all the rest of my lands," do not, of themselves, import a devise of the fee ; but, unless aided by the context, the devisee, whether he be a sole or a residuary devisee, will, if there be no words of limita- tion, take only a life estate. We next come to the effect of the words, " in possession, reversion, or remainder," and, as incidental thereto, the eflfect of the word " tene- ments." That the term " remainder" may, in some cases, connected with other clauses, carry a fee, has been already admitted, and was the very point in 1 Lutw. 755. The same is true in respect to the \yord " reversion." This is affirmed in the case of Bailis v. Gale, 2 Fes. Rep. 48, where the devise was, " I give to my son, C. G., the reversion of the tenement my sister now lives in, after her decease, and the rever- sion of those two tenements now in the possession of J. C.," Lord Hard- wicke, in pronouncing judgment, relied on the legal signification of the word " reversion," and that its use by the testator was fairly to be inferred to be in its legal sense, as the whole right' of reverter ; and he adverted to the circumstance, that the devise was to a child, to whom it could scatcely be presumed the parent intended to give merely a dry rever- sion, or to split up his interest in it into parts. But, in that case, as in 1 Lutw. 755, there were antecedent estates, created or existing in the land ; and the devise was of a " reversion," and not, as in this case, of " all the rest of my lands, &c. in reversion," &c. The land now in controversy was not held by the testator as a reversionary estate, but as an estate in possession ; and in no way, therefore, can the doctrine help the present case. But there are cases, which are contrary to Bailis v. Gale, and somewhat clash with its *authority. In Peiton v. Banks, t-j^qo 1 Vern. Rep. 65, the- case was, that a man devised his lands to his <- wife for life, and he gave the reversion to A and B, to be equally divided betwixt them. The court decided, that A and B took an estate as tenants in common for life only. And Sergeant Maynard stated a similar decision to have been made about twenty years before that time. It is not material, however, to enter upon the delicate in- quiry, which of these authorities is entitled to most weight, because the present case does not require it. In respect to the word " tenements," it is only necessary to observe, that it has never been construed in a will, independently of other cir- cumstances, to pass a fee. In Canning v. Canning, Moseley's Rep. 240, and Doe, ex dem. Palmer v. Richards, 3 D. and E. 356, and Denn ex dem. Moor v. Miller, 5 D. and E. 558, S. C, 2 Bos. and Pull. 247, the same term occurred, as well as the broader expression, " heredita- ments." In neither case was the term " tenement," supposed to have any peculiar effect ; and the argument, attempting to establish a fee upon the import of the word " hereditaments," even in a residuary q2 77 86 SUPREME COURT. [Wright ». Denn.] clause, was deliberately overruled by the court. The same doctrine was held in Hopwell v. Ackland, Salk. Rep. 239. If, then, it is asked, what interpretation the court put upon the words " all the rest," in connexion with " lands and tenements?" the answer is, that no definite meaning can, in this will, be annexed to them. It is our duty to give effect to all the words of a will, if, by the rules of law, it can be done. And where words occur in a will, their plain and ordinary sense is to be attached to them, unless the testator manifestly applies them in some other sense. But, if words are used by him, which are insensible in the place where they occur, or their common meaning is deserted, and no other is furnished by the will, courts are driven to the necessity of deeming them as merely insignificant or surplusage, and to find the true interpretation of the will without them. In the present case, the words, " all the rest of my lands and tenements," stand wholly disconnected with any preceding clause. There is nothing to which " the rest" has a relation, for no other devise of real estate is made. We have no certain guide to the testator's intention in using them. We may indulge conjectures ; but the law does not decide upon conjectures, but upon plain, reasonable, and certain expressions of in- tention founded on the face of the will. The next clause is, " provided she has no lawful issue." The pro- bable intention of this proviso was, " provided she has no lawful issue" by me. Men do not, ordinarily, look to remote occurrences in the struc- ture of their wills, and especially unlearned men. The testator was young, and his wife young, and it was natural for them not to despair *of issue, although, at the time of the will, he was in ill health. In r^o,- case of leaving children, posthumous, or otherwise, he might think '- that the gift to his wife of the whole of his real estate, would be more than conjugal affection could require, or parental prudence justify. In that event, he might mean to displace the whole estate of his wife, and to leave her to her dower at the common law, and the children to their inheritance by descent. This interpretation would afford a rational exposition of the clause, and, perhaps, ought not to be rejected, although there is no express limitation in the words. In this view, it is not very material, whether it be considered as a condition precedent or subse- quent, though the general analogies of the law would certainly lead to the conclusion, that it was in the latter predicament. But even in this view, which is certainly most favourable to the plaintiffs in error, it falls short of the purposes of the argument. As a condition, in the event proposed, the prior estate of the wife would be defeated ; but there would be no estate devised to the issue. They would take by descent as heirs, and not by devise. It would be going quite too far to construe mere words of condition to include a contingent devise to the issue ; to infer from words defeating the former estate, an intent to create a new estate in the issue, and that estate a fee, and a clear sub- stitute for the former. No court would feel justified, upon so slender a foundation, to establish so broad a superstructure. Nor can any in- tention to give a fee to the wife be legally deduced from the proviso, in any way of interpreting the terms, because it is as perfectly con- sistent with the intention to defeat a life estate, as a fee, in the whole of the lands. The testator, with a limited property, might justly think it too much to take from his own issue the substance of their inheritance 78 FEBRUARY TERM, 1825. 87 [Wright V. Denn.] during a long minority, in favour of a wife, who might live many years, and form new connexions. In such an event, leaving her to the general provision of law, as to dower, would not be unkindness or injustice. But, it is sufficient to say, that the words are too equivocal to enable the court to ascertain from them the clear purpose of establishing a fee. And if the proviso refers to any lawful issue by any other husband, then it must be deemed a condition subsequent; and in the events, which have happened, the estate of the wife, whether it be for life or in fee, has been defeated, and the plaintiffs in error are not entitled to reverse the present judgment. Quacunque via data est, the proviso cannot help the case. It remains now to consider the succeeding clause of the will, in which the testator repeats his devise, and gives to his wife " all his lands," &c. dropping the words " the rest," and, therefore, showing that he did not understand them as'having any other or stronger import than the will *presented without them. Then follow the words, " by her freely r^oo to be possessed and enjoyed ;" upon which great stress has been ■- laid at the bar. If these words had occurred in a will devising an estate for years, or for life, or in fee, in express terms, they would uot, probably, have been thought to have distinct auxiliary signification, but to be merely a more full annunciation of what the law would imply. Occurring in a clause where the estate is undefined, they are supposed to have a peculiar force ; so that, " freely to possess and enjoy," must mean to possess and enjoy without any limitation or restriction as to estate or right. The argument is, that a tenant for life is restricted in many respects ; she can make no permanent improvements or altera- tions; she is punishable for waste, and is subject to the inquisition of the reversioner. But, if this argument is admitted, it proves, not that a fee is necessarily intended, but that these restrictions on the life estate ought to be held to be done away by the words in question. They admit of quite as natural an interpretation, as being construed to mean, free of encumbrances ; and, in this view, are just as applicable to a life estate as a fee. Perhaps the testator himself may have entertained the notion, that the legacies in his will, or that of his father, were encum- brances on the estate ; and if so, the words would indicate an intention, that the wife should be disencumbered of the burthen. But in what way are we to reconcile the argument deduced from this clause, with that drawn on the same side from the preceding proviso ? How could the testator intend, that the wife should " freely possess and enjoy" the lands in fee, when, in one event, he had stripped her of the whole estate, and that by a condition inseparably annexed as an encumbrance to her estate ? We ought not to suppose that he intended to repeal the pro- viso under such a general phrase. The case of Loveacres v. Blight, Cowp. Rep. 352, has been supposed to be a direct support of the argu- ment in favour of a fee. In that case, the testator made the following devise : " as touching such worldly estate wherewith it hath pleased God to bless me in this life, I give," &c. " in the following manner and form : first of all, I give and' bequeath to E. M., my de*arly beloved wife, the sum of five pounds, to be paid yearly out of my estate, called G., and also one part of the dwelling-house, being the west side, with as much wood-craft, home at her, as she shall have need of, by my execu- tors hereafter named. I give," &c. " unto my son, T. M., the sum of five 79 88 SUPREME COURT. [Wright V. Denn.] pounds, to be paid in twelve months after my decease. I give unto my granddaughter E., the sum of five pounds, to be paid twelve months after my decease. Item, I give unto J. M., and R. M., my two sons, whom I make my and ordain my sole executors," &c. " all and singular my lands and messuages, by them freely to be possessed and enjoyed 8Q*1 *8^'ik6." The question was, whether by this clause, the sons took an J estate for life, or in fee. The court held, that they took a tenancy in common in fee. Lord Mansfield, in delivering the opinion of the court, admitted, that if the intention were doubtful, the general rule of law must take place. But he laid stress upon the circumstance, that the estate was charged with an annuity to his wife, so that the testator could not mean by the word " freely," to give it free of encumbrances. He thought the free enjoyment must, therefore, mean, free from all limitations, that is, the absolute property of the estate. He also thought the introductory clause not unimportant; and thaf the blank after »iy was intended to be filled with " heirs ;" and it can scarcely escape observation, that it was a case, where the sons of the testator were the devisees. These considerations may well lead to a doubt, whether lord Mansfield intended to lay down any general principle of construction in relation to the words, " freely to be enjoyed," &.c. But if he did, the subsequent case of Goodright v. Barron, 11 East's Rep. 220, has mani- festly interfered with its authority. In that case, there was an intro- ductory clause, " as touching such worldly estate wherewith it hath pleased God to bless me," &c. ; and the testator then proceeded as follows : " I give and bequeath to my brother T. D. a cottage house, and all belonging to it, to him and his heirs for ever, W. C. tenant. Also, I give and bequeath to my wife E., whom I likewise make my sole executrix, all and singular my lands, messuages, and tenements, by her freely to be possessed and enjoyed." The court held, that the wife took an estate for life only ; that the words being ambiguous, did not pass a fee against the heir, but might mean free from encumbrances or charges, free from impeachment for waste ; aad that the introductory clause could not be brought down into the latter distinct clause to aid it, though, if joined, it might have had that effect. The court distin- guished that case from the case before lord Mansfield, because, in the latter, as the testator had already encumbered the estate, the words must have meant to pass a fee, or they would have no meaning at ail. Mr. Justice Le Blanc added, that the words used were not inconsistent with a life estate only ; and he distinguished between them and the words, " freely to be disposed of," admitting that the latter would pass a fee. So that, taking both these cases together, the fair deduction is, that the words, " freely to be possessed, «&c." are too uncertain, of themselves, to raise a fee, but they may be aided by other circum- stances. The case before us is far less strong than either of the foregqing cases, for there is no introductory clause, showing an intention to dis- pose of the whole property, as there was both in Goodright v. Barron, qn#l *^"*^ Loveacres v. Blight ; nor is there any encumbrance created J by the testator on the land, which was the decisive circumstance, that governed the latter. Upon the whole, upon the most careful examination, we cannot find a sufficient warrant in the words of this will to pass a fee to the wife. 80 FEBRUARY TERM, 1825. 90 [United States v. Morris.] The testator may have intended it, and probably did, but the intention cannot be extracted from his words with reasonable certainty ; and we have no right to indulge ourselves in mere private conjectures. Judgment affirmed, with costs. The United States v. Morris, Marshal of the Southern District of New York. 10 Wheaion's Reports, 346. The secretary of the treasury has authority, under the remission act of the 3d of March, 1797, c. 361, [Ivii.] to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the collector for distribution. [See note at the end of the case.] Such remission extends to the shares of the forfeiture or penalty to vrhich the officers of the customs are entitled, as well as to the interest of the United States. Qusre, Whether an execution upon a judgment obtained in the district court of Maine, could run into and be executed in the southern district of New York. In a plea of justification by the marshal for not levying an execution, setting forth a remission by the secretary of the treasury, of the forfeiture or penalty on which the judgment waff obtained, it is not necessary to set forth the statement of facts upon which the remission was founded. ERROR to the circuit court for the southern district of New York. This was an action brought against the defendant, in the court below, as marshal of the southern district of New York, for a misfeasance in neglecting to proceed on a venditioni exponas issued out of the district court of the United States for the district of Maine, requiring him to sell the goods and chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, which he had levied upon by virtue of certain executions issued against them, in favour of the United States, on a *judgment recovered in the said district court of Maine, and which p^g, goods and chattels remained in his hands for want of buyers, L according to his return on said executions. The misconduct, or neglect of duty, alleged against the marshal, was, that he did not sell the property so levied upon, according to the command of the writ, but delivered the same up to the defendants, discharged from the execution. The declaration stated the judgment to have been recovered in the September term of the court, in the year 1817, for twenty-two thousand three hundred and sixty-one dollars and seventy-five cents damages, and which, in part, to wit, in the sum of eleven thousand one hundred and eighty dollars and eighty-seven cents, remained in full force, not reversed, paid off, or satisfied, to the plaintiffs, and that execution to that amount remains to be done. The venditioni exponas, as was alleged, was put into the hands of the marshal on the 13th day of August, 1819. The pleadings in the cause show, that Andrew Ogden, of the city of New York, in or about the month of June, in the year 1813, imported Vol. VI. — 11 81 91 SUPREME COURT. [United States v. Morris.] into Portland, in the district of Maine, certain goods and merchandise in the brig Hollen, which vessel, as well as the goods, belonged to himf. These goods, together with the brig, were thereupon seized as forfeited to the United States, on the ground that the goods had been imported in that vessel, in violation of the non-intercourse acts, then in existence. The goods and vessel were libelled in the district court of Maine, on the 6th of July, 1813, and on the 19th of the same month were deli- vered up to Andrew Ogden, after having been regularly appraised, upon his having executed, together with Abraham K. Smedes, and Thomas C. Butler, a bond for their appraised value. The vessel and goods were, afterwards, on the 27th of May, 1817, condemned as forfeited to the use of the United States. And such proceedings were thereupon had, that, in the following September term of the court, a judgment was entered upon the bond of appraisement for twenty-two thousand three hundred and sixty-one dollars and seventy-five cents, with costs. The defendant, Morris, pleaded the general issue, and a special plea in justification, that the forfeitures had been remitted by the secretary of the treasury, setting out in hsec verba, two warrants of remission, which were duly served upon him before the return day of the vendi- tioni exponaS) and averring a compliance on the part of the defendants, with all the terms and conditions required by the warrants of remission.^ All which were duly set forth in the return on the venditioni exponas, before the commencement of the present suit. To this special plea, a replication was filed, stating, in substance, that at the time of the forfeiture, seizure, and condemnation, of the brig Hollen, and the goods imported in her ; and, also, at the time of their *Q2T *condemnati6n, and the entering up of the judgment on the bond for , -• their appraised value, and of the issuing of the several writs of execution, and at the time of the making and issuing the said warrants, of remission, and of the service thereof on the defendant, &c., Isaac Ilsley,. and James C. Jewett, were the collector and surveyor of the port of Portland, and, as such, entitled to one-half of the said forfeiture ; and that the said several executions were issued for their benefit, and solely to collect the said sum of eleven thousand one hundred and eighty dol- lars and eighty-seven cents, for their own separate use, and that th& defendant had notice thereof when the said several writs of execution were delivered to him to be executed ; setting out, also, two endorse- ments on the execution, one signed by the district attorney of Maine, notifying the defendant, that the execution was for the benefit of the said collector and surveyor, and directing the marshal to collect the same by their order. The other was signed by the collector and sur- veyor, requiring the marshal to collect the execution forthwith, and deposit the money agreeable to the command of the writ, and notifying^ him, that the property in the execution was in them, and directing him to receive orders from them, and from no other person whatsoever, in whatever related to the said execution. And it was then averred, that the present suit was for the purpose of enabling the collector and sur- veyor to recover their damages for the injury they had sustained by reason of the misfeasance of the defendant, in the declaration men- tioned, and not for the benefit, use, or behoof, of the said plaintiffs. To this replication the defendant demurred specially, and stated the following causes of d'iiwwrei:; l^ For that the replication is a departure 83 FEBRUARY TERM, 1825. 92 [United States v. Mortis.] fro n the declaration, in this, that the declaration proceeds upon a cause of action in favour of the United States ; whereas the replication pro- ceeds upon a cause of action in favour of the said Ilsley and Jewett, &c. 3. For that the replication discloses no lawful and sufficient authority for the said I. and J. to prosecute the said action against the said T. M., &c., and in the name of the United States. 3. For that the decla- ration proceeds upon the ground, that the several writs of execution therein respectively mentioned, were issued upon a judgment obtained for the use of the United States, and, therefore, according to the act in such case made, i^. PZea^Zer, (s. 8). Ellis v. Rowles, ffiZAes, 638. Bac. Mr., tit. Statute, {J), 5. Plowd. 18. ^Qj^-i *Mr. Justice Thompson delivered the opinion of the court; and, -' after stating the case, proceeded as follows : The judgment of this court being placed upon the validity of the plea, and the merits of the defence therein set up, it is unnecessary particularly to notice any other questions that have been discussed at the bar. To guard, however, against an inference, not intended by the court to be adniitted, that the execution, in this case, was properly issued from the district court of Maine to the marshal of New York, it is proper to observe, that this must depend on the construction to be given to the act of congress of the 3d of March, 1797, entitled, " an act to provide more effectually for the settlement of accounts between the United States and the receivers of public money." Independent of this act, it has not, and certainly cannot be pretended, that an execution from the district court of Maine could run into any other state. The sixth section of that act declares, " that all writs of execution upon any judgments obtained for the use of the United States, in any of the courts of the United States, in one state, may run and be executed in any other state, but shall be issued from, and made returnable to, the court where the judgment was obtained. The pleadings in this case show conclusively, that although the judgment is nominally in favour of the United States, yet it is substantially and beneficially for the use' of the custom-house officers of Portland ; and that the execution was issued solely and exclusivelyfor their benefit, and not for the use of the United States. If it was necessary to decide this point, it might be difficult to maintain that this case came within the true intent and meaning of the act ; but as the decision of the cause is put upon a point more ex- tensive in its practical application, this is passed by without the expres- sion of any opinion upon it. Nor is it deemed necessary to notice any objections taken to the replication. The argument has been confined principally to the plea, as being the first error on. the record. The plaintiff having replied, without taking any exceptions to the plea, he cannot now avail himself of any defect, that would not have been fatal on a general demurrer. The objections to the plea may be considered under the following heads : 1. That it does not set forth, with proper averments, the facts and circumstances stated in the petition to the secretary of the, treasury, and upon which the remission of the forfeiture was granted. 2. That the secretary of the treasury had no power to remit after condemnation. The first objection supposes the case to fall within the rule, that where a justification is set up under a special or limited authority, every »QM *thing should be set out to show the case to be within the juris- J diction of the authority whose protection is claimed and relied upon. 84 FEBRUARY TERM, 1825. 95 [United Statea v. Morris.] It may be observed, preliminarily, that this objection, coming so late, and at this stage of the cause, is not entitled to much indulgence. If well founded, and it had been made at an earlier day, the plea could have been amended, and much expense and litigation prevented. Every reasonable intendment, therefore, in favour of the plea, ought now to be made. It by no means follows, that in order to sustain this plea, it is neces- sary to show that it would have been held good on general demurrer. For it is a rule founded in good sense, and supported by the settled doctrines of pleading, that many defects are waived and cured, by ^leading over, that might have been fatal on demurrer. But it is far from being admitted that this plea would not have stood the test of a general demurrer. The defendant was a ministerial offi- cer, and placed in a situation, in which he was obliged to judge and determine, whether to obey the command of the execution, or that of the warrant of remission from the secretary of the treasury. The latter is set out in haec verba in the plea, and upon its face refers to the law under which it was issued, which was a public act ; and in which war- rant the secretary of the treasury sets forth, that a statement of facts, with the petition of Andrew Ogden, touching the forfeiture, had been transmitted to him by the district judge of the district of Maine, pur- suant to the statute of the United States, entitled, " an act to provide for mitigating or remitting the forfeitures, penalties and disabilities, accruing in certain cases therein mentioned," as by the said statement of facts, an,d petitions remaining in the treasury department of the United States may fully appear ; and that he having maturely consi- dered said statement of facts, it appeared to his satisfaction, that the said forfeitures were incurred, without wilful negligence or any inten- tion of fraud, and thereupon remitted all the right, claim and demand of the United States, and of all others whomsoever, upon certain con- ditions therein specified. This warrant, therefore, upon its face, con- tained every thing required by the law, and which was necessary to bring the case within the cognisance of, the secretary of the treasury; and to require any thing more from a ministerial officer for his justifica- tion, would be imposing upon him great hardship. This plea, by setting out the warrant at large, adopts and asserts all the facts therein set forth, and must be taken as alleging, that a statement of facts had been made by the proper officer, and transmitted to the secretary of the treasury, and is, therefore, an averment of that fact. It is not, to be sure, a formal, but is a substantial, averment ; which is *nothing more than a positive statement of facts, in oppo- r^qj, sition to argument or inference. '- It would be altogether useless, and mere surplusage, to set forth such statement of facts in the plea ; they would not be traversable. It is not competent for any other tribunal, collaterally, to call in question the competency of the evidence, or its sufficiency, to procure the re- mission. The secretary of the treasury is, by the law, made the exclu- sive judge of these facts, and there is no appeal from his decision. The law declares, that on receiving such statement, he shall have power to mitigate, or remit, such fine, forfeiture, or penalty, or remove such disability, or any part thereof, if, in his opinion, the same shall have been incurred without wilful negligence, or any intention of fraud, in H 85 96 SUPREME COURT. [United States v. Morris.] the person or persons incurring the same. The facts are submitted to the secretary, for the sole purpose of enabling him to form an opinion, "whether there was wilful negligence, or intentional fraud, in the trans- action ; and the correctness of his conclusion therefrom no one can question. It is a subject submitted to his sound discretion. It would be a singular issue to present to a jury for trial, whether the facts con- tained in such statement were sufficient or not to satisfy the secretary of the treasury, that there was no wilful negligence, or intentional fraud. If the plea, by setting out the warrant at large, contains, as I have endeavoured to show, an averment, that a statement of facts had been transmitted to the secretary by the proper officer, as required by the law, it was all that was necessary. This gave the secretary cogni- sance of the case, and which was sufficient to give him jurisdiction. But what effect that statement of facts would or ought to have upon his opinion, whether the forfeiture was incurred without wilful negli- gence or any intention of fraud, is a matter that could not be inquired into. But, should any doubt remain on this point, it is removed by the admissions in the replication ; which begins by saying, that although true it is that the said William H. Crawford, as such secretary of the treasury of the United States, did make and issue the said warrants of remission, as in the said plea of the said defendant is alleged, yet, &c. ; proceeding to set out facts and circumstances, to show that the legal effect and operation of such remission cannot take away the moiety of the custom-house officers, but affirming its validity as to the moiety of the United States, and thereby admitting the authority and jurisdic- tion of the secretary of the treasury,' and placing the avoidance of the operation of the remission on the rights of the custom-house officers, on a totally distinct ground. The only purpose for which the statement of facts upon which the secretary acted, could be required to be set out in the plea, would be to show his jurisdiction ; and if the replication ^q_-| *admits this, it must certainly work a cure, or waiver of the de- J feet. It is laid down by Chitty, Plead. 547, and for which he cites adjudged cases which support him, that, as a defective declara- tion may be aided at common law by the plea, so a defective plea may be aided, in some cases, by the replication. As if, in debt on bond, to make an estate to A., the defendant pleads, that he enfeoffed another to the use of A., (which is not sufficient, without showing that A. was a party, or had the deed,) yet, if the plaintiff reply that he did not enfeoff, this aids the bar. So, if the defendant plead an award without sufficient certainty, and the plaintiff makes a replication which imports the award to have been made, it aids the uncertainty of the bar. And this rule is not confined to matters of form merely, but extends to matters of substance. Thus in an action of trespass for taking goods, not stating them to be the property of the plaintiff; this defect will be aided, if the defendant, by his plea, admits the plaintiff's property. So, where several acts are to be performed by the plaintiff, as a condi- tion precedent, and he does not aver performance of all, if it appear by the plea, that the act omitted to be stated was, in fact, performed, the defect is cured. 6 Binn. 24. Chitty, 402. We may, then, conclude, that the plea is not, in the present stage of the cause, to be deemed ilefective on account of the first exception taken to it. 86 FEBRUARY TERM, 1825. 97 [United States v. Morris.] And the remaining, and more important inquiry is, whether the se- cretary of the treasury had authority to remit the share of the forfeiture claimed by the custom-house officers. And this must depend on the construction to be given to the act under which the power was exer- cised. The authority of the secretary to remit, at any time before con- demnation of the property seized, is not denied on the part of the plain- ,tiff; and it cannot be maintained, that congress has not the power to vest in this officer authority to remit after condemnation ; and the only inquiry would seem to be, whether this has been done by the act re- ferred to. (2 L. U. S. 585.) The present case ought not, perhaps, to be considered altogether as a remission after condemnation. For, it appears, by the warrant of remission, that the statement of facts, by the district judge, upon which the remission is founded, bears date on the 13th of June, 1814, and the condemnation did not take place until May, 1817; and although the remission was not actually granted until Ja- nuary, 1819, yet, as the facts on which it was founded were judicially ascertained three years before the condemnation, there would be some plausibility in maintaining that the remission should relate back to the time when the application was made to the secretary. But, we think, a broader ground may be taken, and that the authority to remit is *limited only by the payment of the money to the collector for r^a distribution. ' ■- It may safely be affirmed, that the question now presented, has never received any judicial decision in this court. Nor has any case been cited at the bar, or recollected by the court to have been decided here, containing any principle at variance with the construction of the act now adopted. In the case of Jones v. Shore's executors, 1 Wheat. Rep. 462, 3 Cond. Rep. 621, no such question was involved. The United States there asserted no claim. Nor had the secretary of the treasury exercised any authority under the act in question. The money was in court for distribution, and the sole question before this court was, whether the then collector and surveyor, the actual incumbents in office, or the representatives of the late collector and surveyor, in right of their tes- tator, and intestate, were entitled to the money, and it was decided in favour of the latter. The same principle governed the case of Van Ness V. Buel, 4 Wheat. Rpp. 75. 4 Cond. Rep. 394. But these cases decide no more, than that the right of the custom-house officers to forfeitures, in rem, attaches on seizure, and to personal penalties on suits brought ; and in each case this right is ascertained and consummated by the judgment, as between such officers and the party who has incurred the forfeiture or penalty. But they decide nothing with respect to the right or the control of the United States over such penalties and for- feitures. The rights and interests of these officers must necessarily be held subordinate to the authority of the United States over the subject. And that such is the light in which they are viewed, is evident from what fell from the court in the case of Gelston v. Hoyt, 3 Wheat. Rep. 319. 4 ConrJ. Rep. 244. It is there said, the seizing officer is the agent of the government from the moment of the seizure up to the termina- tion of the suit. His own will is bound up in the acts of the govern- ment in reference to the suit. By the very act of seizure, he agrees to become a party to the suit under the government ; for in no other 87 98 SUPREME COURT. [United States v. Morris.] manner can he show an authority to make the seizure, or to enforce the forfeiture. If the government refuse to adopt his acts, or waive the forfeiture, there is an end to his claim ; he cannot proceed to enforce that which the government repudiates. It is not denied but that the custom-house officers have an inchoate interest upon the seizure, and it is admitted that this may be defeated by a remission at any time before condemnation. But, if this is not the limitation put upon the authority to remit, by the act giving the power, it is difficult to discover any solid ground upon which such limi- tation can be assumed. If the interest of the custom-house officers, *991 *^^f'^^® condemnation, is conditional, and subject to the power of -' remission, the judgment of condemnation can have no other effect than to fix and determine that interest as against the claimant. Those officers, although they may be considered J)arties in interest, are not parties on the record ; and it cannot with propriety be said they have a vested right, in the sense in which the law considers such rights. Their interest still continues conditional, and the condemnation only ascertains and determines the fact on which the right is consummated, should no remission take place. This is evidently the scope and policy of the laws on this subject. The forfeiture is to the United States, and must be sued for in the name of the United States. (3 L. U. S. 221, s. 89.) It is made the duty of the collector to prosecute, and he is authorized to receive the money, and on receipt thereof, is required to distribute the same according to law. In all this, however, he acts as the agent of the government, and subject to the authority of the secre- tary of the treasury, who may direct the prosecution to cease. And the act creating the right of the custom-house officers to a portion of the forfeiture, does not vest any absolute right in them until the money is received, (s. 91.) It declares, that all fines, penalties, and forfeitures, recovered by virtue of this act, shall, after deducting all proper costs and charges, be paid, one moiety into the treasury, and the other moiety divided between the collector, naval officer, and surveyor. No part of the act warrants the conclusion, that the right of these officers becomes absolute by the condemnation. But, on the contrary, the plain and obvious interpretation is, that the right does not become fixed until the receipt of the money by the collector. Unless, there- fore, the act under which the remission is allowed, (2 L. U. S. 585,) limits the authority of the secretary of the treasury to the time of condemnation, the custom-house officers have no right to question the remission. That the act does not, in terms, so limit the power, is very certain ; nor is such a construction warranted by the general object and policy of the law, which is intended to provide equitable relief where the forfeiture has been incurred without wilful negligence or intentional fraud. It presupposes, that the offence has been committed, and the forfeiture attached according to the letter of the law, and affords relief for inadvertencies, and unintentional error. And why should such relief be foreclosed by the condemnation ? The law was made for the benefit of those who had innocently incurred the penalty, and not for the benefit of the custom-house officers. If any prosecution has been instituted, the secretary has authority to direct it to cease and be dis- continued, upon such terms or conditions as he may deem reasonable and just. This enables him to do ample justice to the custom-houso 88 FEBRUARY TERM, 1825. 100 , [United States :;. Morrie.] ♦officers, not only by reimbursing all costs and expenses incurred, r^inn but rewarding them for their vigilance, and encouraging them in '• the active and diligent discharge of their duty in the execution of the revenue laws. But, to consider their right to a moiety of the forfeiture as absolute, and beyond the reach of the law, after condemnation, would be subjecting the innocent to great and inequitable losses, contrary to the manifest spirit and intention of the law. The secretary is author- ized to direct the prosecution to cease and be discontinued. This, undoubtedly, gives him a control over the execution. The suit, or prosecution, does not end with the judgment, but embraces the execu- tion, and it has so been considered by this court at the present term. And that such is the sense in which the term prosecution is used in these laws, is evident from the eighty-ninth section of the collection act, where the collector is required to cause suits to be commenced and prosecuted to effect. But the prosecution would be to very little effect, unless it extended to and included the execution. The provision in the third section of the act under which the remission is allowed, affords a very strong inference, that the rights of the custom-house officers are conditional, and subordinate to the authority to remit. It declares, that nothing herein contained shall be construed to affect the right or claim of any person, to that part of any fine, penalty, or forfeiture, to which he may be entitled, when a prosecution has been commenced, or information has been given, before the passing of this act, or any other act relative to the mitigation or remission of such fines, penalties, or forfeitures ; thereby clearly showing, that before such power to remit was given, the right of the custom-house officers attached upon the commencement of the prosecution, and could not be devested ; but that such right was now modified, and made conditional. This provision is contained in the first law which passed in the year 1790, 2 L. U. S. 103, giving authority to the secretary of the treasury to remit penalties and forfeitures. This act was temporary, but continued from time to time until the 8th of May, 1795, when it expired, and was not revived until March, 1797, leaving a period of two years, when the power to remit was not vested in the secretary of the treasury, and to which period the provision in the third section of the act of 1797 probably refers. The powers of the secretary of the treasury have been supposed analogous to those of the commissioners of the customs in England, under the statute 27 Geo. III., c. 32, s. 15. But it is very obvious, on reference to that statute, that the authority of the commissioners to remit, was limited to the condemnation. These powers were afterwards, by statute 51 Geo. III., c. 96, extended, but still limited to remissions, before condemnation. It was probably not deemed advisable to confer *more enlarged powers upon the commissioners of customs, but r^^n-i that a power somewhere to remit after judgment of condemna- '- tion was proper and necessary ; and accordingly, by statute 54 Geo. III., c. 171, this power is transferred to the commissioners of the trea- sury. The two former acts are recited, and the recital then proceeds thus : " Whereas it is expedient, that the provisions of the said acts should be further extended, and that the commissioners of his majesty's treasury should be impowered to restore, remit, or mitigate any for- feiture or penalty incurred under anv laws relating to the revenue, or Vol. VI.— 12 II 2 89 101 SUPREME COURT. [United States v. Morris.] customs, or excise, or navigation, or trade, either before or after the same shall have been adjudged in any court of law, or by or before any commissioner of excise, or justice of the peace;" and it is then enacted, that the commissioners of the treasury may order any goods seized as forfeited, to be restored, on the terms and conditions mentioned in the order, and may mitigate or remit any penalty or forfeiture which shall have been incurred under the revenue laws, and upon such terms and conditions, as to costs, or otherwise, as under the circumstances of the case shall appear reasonable. The enacting clause in this statute is general, like our act. It does not, in terms, give the power to the com- missioners of the treasury to remit after condemnation, and yet there can be no doubt the power extends to such cases ; and, if this be so, what becomes of the rights of informers, which have been supposed to become, by the judgment of condemnation, so vested as not to be devested even by a pardon ? The powers given by this statute to the commissioners of the trea- sury, are very analogous to those given by our act to the secretary of the treasury, and the phraseology employed to confer such powers is nearly the same in both. Neither the one nor the other, in terms, ex- tends the power to remission after condemnation ; and there can be no reason why the same construction should not be given to both. No vested rights of informers, or custom-house officers, are violated in either case. These rights are conditional, and subordinate to the power of remission, and to be provided for in the terms and conditions upon which the remission is granted. The practical construction given at the treasury department to our act, has not been particularly inquired into. It is understood, however, that until within a few years, remissions were granted as well after as before condemnation, but that latterly this power is not exercised after condemnation, nor will the remission be granted before con- demnation, unless the petitioner will admit the forfeiture has been in- curred. This practice is probably founded on the impression, that the equitable powers of the secretary ought not to be interposed, until the *in91 *'^g^l guilt of the petitioner is ascertained. But the rights of -I the custom-house officers would seem to be as much affected under such a practice, as to remit after condemnation. Those rights are said to be inchoate by the seizure, and to be consummated by the condemnation. The confession of the forfeiture before condemnation, remaining on the record of the treasury department, although not a judicial condemnation, might well be said to consummate the rights of the custom-house officers, if they are to be considered as becoming absolute when the forfeiture is ascertained. The condemnation does no more than to determine that question, so far as respects the rights of those officers ; for the condemnation is not to them, but to the United States-, they are no parties to the judgment; and their rights must depend upon, and be governed and controlled by, the acts of congress, which create and regulate such rights ; and by these acts, those rights, in the opinion of the court, do not become fixed and absolute by the condemnation, but are subject to the power of remission by the secre- tary of the treasury > until the money arising from the forfeiture is received by the collector for distribution. The warrant of remission, therefore, in this case, when served upon the marshal, operated as a 90 FEBRUARY TERM, 1825. 102 [United States v. Morris.] supersedeas to the execution, and justified a discharge and restoration of the property levied upon, and exonerates him from all claim to damages by the custom-house officers. Mr. Justice Johnson. I entirely concur with my brethren in the opinion, that the power of the secretary to remit extends as well to cases after as before judgment rendered. The question is one which I have had to consider repeatedly in my circuit, and which I so decided more than twelve years ago. The reasons on which I then founded, and still adhere to this opinion, were briefly these : I consider the contrary doctrine as neither consistent with the words nor the spirit of the act of 1797. The unavoidable consequence of it would be, that the suitor for grace is shut out of every legal defence ; and it would be difficult to assign a reason why justice should be refused by the hand that tenders mercy. Many defences are not only consistent with the claim for remission, but furnish in themselves the best ground for extending the benefit of the act to the party defendant. He who supposes his case not to come within the construction of a law, or that the law is repealed, expired, or unconstitutional, cannot be visited with moral oflfence, either in the act charged or the defence of it. Yet, how is the question of right ever to be decided, unless he is permitted to try the question before a court of law 1 In such a case, pertinacious adherence to his offence cannot be imputed to him, since *resisting the suit on the one hand, while he sues for remission rj^ino on the other, amount to no more than this, that he denies having L violated the law ; but if the court thinks otherwise, he then petitions for grace, on the ground of unaffected mistake ; a point on which, of course, he must satisfy the secretary, before he can obtain a remission. If the question be tested by the letter of the law, it will be found, I think, to lead to the same conclusion. The words are, "whenever any person who shall have incurred any fine, penalty, forfeiture, or disa- bility, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure,forfeiture, or disability, by force of any present or future law of the United States, for laying or collecting any duties or taxes, or by force of any present or future act concerning the registering and recording of ships or ves- sels, &c., shall prefer his petitio;i to the judge of the district in which such fine, penalty, forfeiture, or disability, shall have accrued, truly and particularly setting forth," &c., then, &c., the power of remission may be exercised by the secretary, and the prosecution, if any, ordered to be stayed. On perusing this act, it must be conceded, that the terms are suffi- ciently general to extend the powers of the secretary, without limit, to the cases of fine, forfeiture, or disability, occurring under the several laws specified. The limitation, therefore, must be sought for either in .some principle of construction, or in some principle aliunde, which is competent to impose such limitation. But, with a view to construction, there will be found several consi- derations calculated to extend the power granted to cases wherein judg- ments have been obtained, rather than to restrain it to any pre-existing state of things. If the question be tested by the technical signification of the terms, in strictness the power would be confined to cases in which 91 103 SUPREME COURT. [United States v. Morris.] judgment had been obtained, rather than to those of a contrary descrip- tion. Fines, penalties, and disabilities are not incurred, and do not accrue, in the technical sense of the terms, until judgment. With regard to disabilities particularly, (and there is no discrimination made between the cases,) I would notice that disqualification to hold any office under the United States, which is imposed upon a smuggler for seven years. Who can question that it must be counted from the day of judgment, and not from the day of the offence or information ? Or who can sup- pose that it could be made a plea to the authority of a public officer at any time before conviction? But, with regard to fines and forfeitures, also, there are various pro- visions of the United States laws, which look positively to a trial as necessary to determining whether such fines and forfeitures have been *1041 *i"curred. I would notice particularly the twenty-ninth section of -■ the collection law of 1799, under which, incurring thejjenalty for the oflfence there stated,ismade to dependupon the master's not being able to satisfy the court, by his own oath, or other sufficient testimony, of certain facts, which, in the given case, prevent his incurring the fine. So, also, of the sixty-seventh section of the same law, in which a forfeiture is made to accrue upon a state of facts which positively re- quires the intervention of a court of justice, and which, of consequence, cannot be said to have been incurred or accrued until judgment. But other considerations present theniselves upon this law, which lead to the same conclusion. The- words are, " shall prefer his petition to the judge of the district in which such fine, penalty, forfeiture, or disability, shall have accrued." That this word accrued meant some- thing more than the term incurred, used in the previous part of the sec- tion, is obvious from this consideration, that an offence might be com- mitted in one district, and the offender prosecuted in another; but it never was imagined, that the suit for remission could be going on in the district where the penalty was incurred, in one sense of the term, and the prosecution in another. The term accrued, therefore, has been universally held to be here used with relation to the seizure, informa- tion, or suit for the penalty ; and so far from its being held to have any effect in confining the time of prosecuting this claim for remission to the interval between information and judgment, that, practically, we know, in some of the most commercial districts, the construction adopted was, that the penalty did not accrue until conviction ; and, hence, suf» fering a decree or judgment to pass, was considered as essential to making up the case in which the suit for remission might be preferred. And there was some reason for this practice, since the necessary mean- ing of the term, as distinguished from the word incurred, shows, that there could hardly ever occur a case in which the suit for remission was not preceded by the suit for the penalty. But, if the defendant was compelled to confess that he had violated the law, and so the act requires, what reason could exist why judgment should not forthwith pass against him? And if, under such circumstances, the judgment was a bar to the remission, the boon held out to them was all a fallacy ; nay, more, it was a lure to ensnare him ; for the law imposes no obli- gation on the judge to stay proceedings; and whether he would or not, rested with him, or with the district attorney, until the secretary should have time to act upon the application for remission. 92 FEBRUARY TERM, 1825. 104 [United States v. Morris.] The replication, however, exhibits the true ground on which the real plaintiff in this suit is compelled to rest his case : which is, that, by vir- tue of the judgment, certain rights were vested in him, over which the ♦remitting power of the secretary does not extend. In making r#i«r up this replication, the party ought to have felt the real difficul- '- "^ ties of his case. It is generally true, that the rules of pleading furnish the best test of a right of action. The effect, in this case, was to in- troduce a new personage into the cause ; and if I were disposed to get rid of the question, on a technical ground, I should find no difficulty in coming to the conclusion, that there is a departure in this plea, and he has abated his writ. How, in fact, the name of the United States comes at all to be used in this cause, is to me a mystery. The very policy of the law in this part of its revenue system is avoided by it, and would be frustrated, if the practice could be countenanced. That the name of the United States should be used against its will, and an attorney for the United States nominated by a judge, to act where the attorney of the United States refuses to act, and that without any authority by statute, I acknowledge has excited my surprise. The principles asserted are, that an absolute interest is vested by law in the collector ; that the United States are the trustees to their use ; that the act of the trustee shall not defeat the interests of the cestui que use, and that he shall have the use of the trustee's name to vindicate his rights : that too in an action for damages. The whole of this thing appears to me to be wrong. If the right was an absolute, substantive, individual right, why was not the suit brought in the name of the collector ? If his interest is only an equitable inte- rest, by what known rules of pleading can he avail himself of his mere equitable interest in a suit at law? or rather, can he make his appear- ance as party in the suit instituted by his trustee? and that, too, a suit for damages? It all results in a strong 'attempt to modify the opera- tion of our laws, and to regulate the rights and powers of our officers, by some fancied analogy with the British laws of trade, and British revenue officers. Our system is a peculiar system ; and nothing is clearer to my mind, than that, in many particulars, it is constructed with a view to avoid that very analogy which is here set up, and those consequences and embarrassments which might grow out of it. In the instance before us, relief was to be provided for a case of misfortune and of innocence, and nothing could have been more absurd, than to suffer the vested rights of informers and seizing officers to embarrass the government in its benevolent and just views towards the objects of this law. Mercy and justice could only have been administered by halves, if collectors could have hurried causes to judgment, and then clung to the one-half of the forfeiture, in contempt of the cries of distress, or the mandates of the secretary. Hence, according to our system, all the suits to be *instituted under the laws over which the secretary's power r^ina extends, are commenced in the name of the United States. No '- other party is permitted to sue ; they are all made national prosecu- tions ; all the legal actors are those who are bound in obedience to the government that prosecutes. Nothing is more untenable than the idea, that at any one stage of the prosecution the government assumes the character of a trustee ; an idea so abhorrent to the principles of the 93 lOG SUPREME COURT. [United States v. Morris.] common law, that to make the king a trustee, was to make him absolute proprietor. Nor is it until the character of prosecutor for ofltuces against itself is put off, that the law raises a state of things, in which the relation of trustee and cestui que use actually can arise. This is when the money is paid into the hands of the collector. To him the law directs that it shall be paid, in order that it may be distributed. What right, I would ask, would any one of the distributees here have to move the court, that the money be paid to him, arid not to the col- lector ? There are cases in which other persons than a collector may be entitled in the capacity of informers, and it may then be necessary for the court to decide on individiial rights. But in no case, that I am aware of, arising under the collection law, can the court be called upon to pay the money in any other way than to the collector, to be by him distributed ; and this distribution I consider as a mere boon from the government, which they may justly, and do practically, reserve a sovereign control over, until so paid under their laws. The gift is from them, of a thing perfected to them, and they may modify and withdraw that gift, ad libitum. When once paid away, according to legislative will, their control is at an end, and the right then, and not till then, becomes vested and absolute, as between them and their officers, whom, to the last, the law regards as absolute donees. That such is the view of the legislature, and that, in the exercise of that discretion, they still meant to be reasonable and just, and not to exercise an ex post facto power in such case, is all conclusively proved in the third section of this act, as has been very justly insisted on in argument. During two years, this power of the secretary had remained suspended, and with regard to rights accruing during that time, the legislature declares, that as the modification imposed upon the grant to the informer, or seizing officer, by virtue of that dispensing power, did not then exist, their proportions should not afterwards be subjected to it, but the court may assess their proportions in a summary manner. There cannot be a more explicit declaration of legislative understanding than this clause presents, inasmuch as it makes no discrimination between the cases of judgment and other cases, but considers the right accruing to them the same before jtidgment as it is after. ^jr^„-] *There is one peculiarity in this case, which, in my opinion, J precludes the possibility of recovery, independently of the gene- ral principle ; which is, that this action is brought against the marshal for not executing process issuing from another state. It certainly pre- sents a dilemma from which I think it impossible for the party plaintiff to escape. The right to issue such process originates in the sixth sec- tion of the " act more effectually to provide for the settlement of ac- counts between the United States and receivers of public money," by the words of which the power is explicitly confined to the case of exe- cutions on judgments obtained for the use of the United States. The real plaintiff here, then, is reduced to this alternative : either the judgment was for his use or it was not. If not for his use, then he cannot be damnified by the defendant in refusing to execute it. But if for his use, it cannot be for the use of the United States, and then the execution issued wrongfully, and was rightfully disobeyed. If it be replied, that the judgment, in the first place, was obtained for the use of the United States, it only brings us back to what I before observed, 94 FEBRUARY TERM, 1825. 107 [United States v, Morris.] that so entirely is this true, as to raise no vested right in any one on the solitary ground of an eventual contingent interest. Judgment affirmed. Remission of penalties and forfeitures by the secretary of the treasury. Until final judgment, no part of the forfeiture vests absolutely in the collector ; but after final judgment, his share vests absolutely and cannot be remitted by the secretary of the treasury. The Margaretta, 2 Gallis. 515; The Hotlen, 1 Mason, 431. If, pending the proceedings, a remission be made of the whole property forfeited, his whole title is gone ; if of a part only,, his title attaches to the remainder, and by a judgment of con- denination, becomes fixed and indissoluble. Ibid. 2 Uallis. 515. The court in considering a question of forfeiture disregards a refusal of the secretary of the treasury to remit the penalty. The Cotton Planter, 1 Paine, 23. The secretary of the treasury has no power to remit penalties, unless in cases provided for by law. The Margaretta, 2 Gallis. 515. If he recites his authority under a special act, and remits in pursuance of that act, the re- mission, if unsupported by that act, cannot be supported under the general act of March 3d, 1797, ch. 361. Ibid. Under the act of February 27th, 1813, ch. 498, 4 Bior. 506, the secretary of the treasury had no authority to remit penalties for goods subsequently imported, contrary to the non-impor- tation act. Ibid. Under the act of March 3d, 1797, ch. 361, 2 Bior. 585, the district judge is bound, upon a petition for remission, to state the facts, and not merely the evidence of the facts ; and the se- cretary of the treasury is bound by this statement of facts, and cannot legally act upon any other evidence. Ibid. The district judge, in stating such facts, acts judicially, an d the proof before him must be made by competent, as well as credible testimony. Ibid. ' A statement by the district judge that the claimant only swore to the facts before him, is no legal proof under the act of 1797, upon which the secretary of the treasury is authorized to remit. Ibid. *Under the act of February 27th, 1813, ch. 498, the secretary of the treasury had ri-irija no authority to make a remission of part only of the property forfeited ; if he remit- L '■^'^ ted at all, he was bound to remit the whole penalty or forfeiture. Ibid. Neither under the act of 1797 nor the act of 1813, had the secretary of the treasury any authority to remit the collector's share of the forfeiture, nor any part of it eo nomine. Ibid. The ship Good Friends, and her cargo of British merchandise, owned by Stephen Girard, a citizen of the United States, was seized by the collector of the Delaware district, on the 19th of April, 1812, for a violation of the non-intercourse laws of the United States, then in force. The ship and cargo were condemned as forfeited, in the district and circuit court of the Dela- ware district. On the 29th of July, 1813, congress passed an "act for the relief of the owners of the Good Friends, &c.," and a remission of the forfeiture was granted by the secretary of the treasury, under the authority of that act, with the exception of a sum equal to the double duties imposed by an act of Congress passed on the 1st of July, 1812. The collector was en- titled to one moiety of the whole amount reserved by the secretary of the treasury, as the con- dition of the remission. MLain v. The United States, 6 Peters, 404. The duty of the collector in superintending the collection of the revenue, and of making seizures for supposed violations of law, is onerous and full of perplexity. If he seizes any goods, it is at his own peril ; and he is condemnable in damages and costs, if it shbuld turn out, upon the final adjudication, that there was no probable cause for the seizure. As a just reward for his diligence, and a compensation for bis risks ; at once to stimulate his vigilance and secure his activity ; the laws of the United States have awarded to him a large share of the proceeds of the forfeiture. But his right by the seizure is but inchoate ; and although the for- feiture may have been justly incurred, yet the government has reserved to itself the right to lelease it, either in whole or in part, until the proceeds have been actually received for distribution ; and in that event, and to that extent, it displaces the right of the collector. Such was the de- cision of this court in the case of the United States v. Morris, 10 Wheaton, 246. Ibid. But whatever is reserved to the government out of the forfeiture, is reserved as well for the seizing officer as for itself; and is distributable accordingly. The government has no authority, under its existing laws, to release the collector's share, as such, and yet to retain to itself the other part of the forfeiture. Ibid. In point of law, no duties, as such, can legally accrue upon the importation of prohibited goods. They are not entitled to entry at the custom-house, or to be bonded. They are, ipso farU, forfeited by the mere act of importation. Ibid. 95 109 SUPREME COURT. *109] *TheDos Hermanos. Shields, Claimant. 10 Wheaton's Reports, 306. Seizures made, jure belli, by non-commissioned cnptors, are made for the government, and no title of prize can be derived but from the prize acts. A non-commissioned captor can only proceed in the prize court as for salvage, the amount of which is discretionary. The appellate court will not interfere in the exercise of this discretion, as to the amount of salvage allowed, unless in a very clear case of mistake. An appeal under the judiciary acts of 1789, and of 1803, prayed for, and allowed within five years, is valid, although the security was not given until after the lapse of five years. The mode of taking the security, and the time for perfecting it, are within the discretion of the court below, and this court will not interfere with the exercise of that discretion. APPEAL from the district court of Louisiana. This was the same case reported in 2 Wheat. Rep. 76, 4 Cond, Rep. 39, where the decree of the court below, condemning the cargo as ene- my's property, was affirmed by this court, reserving the question as to the distribution of the prize proceeds. The original capture was made by Mr. Shields, a purser of the navy, in the year 1814, in a barge armed and fitted out to cruise, but not regularly attached to the navy. The cause was remanded to the court below for further proceedings, and that court decreed the proceeds to be equally distributed between the United States and the captor, without deducting the captor's expenses. From this decree the captor appealed to this court. Mr. C. J. IngersoU, for the appellants, cited : 3 Reeves's Hist. Eng. Law, 371, 372. Wood's Inst. Imp. Law, 154, b. 2, c. 3. 1 Ruffh. 302. 2 Reeves's Hist. Eng. Law, 454. The San Bernardo, 1 Rob. 178. The Haase, I Rob. 24. The Attorney-General, contra, cited: The Melomasne, 5 Rob. 41. The Charlotte, 5 Rob. 280, and note. The San Bernardo, 1 Rob. 178. The Haase, 1 Rob. 286. The Amor Parentum, 1 Rob. 303. The Elsebe, 5 iJoft. 173,181. Mr. Chief Justice Marshall delivered the opinion of the court, that whatever might have been the ancient doctrine in England in respect to captures in war, it is now clearly established in that kingdom, that all captures jure belli, are made for the government, and that no title of prize can be acquired but by the public acts of the government con- ferring rights on the captors. If the original law of England author- ^, ,/^-, ized *an individual to acquire to his own use the property of J ah individual, without any express authority from the public, that law was changed long before the settlement of this country. It never was the law of this country. Before the revolution, all captures from the enemy accrued to the government, to be distributed according to law; and the revolution could not strip the government of this exclusive prerogative, and vest it in individuals. It is, then, the settled law of the United States, that all captures made by non-commissioned captors, are made for the government ; and since the provisions in the 96 FEBRUARY TERM, 1825. 110 [The Josefa Segunda.] prize acts, as to the distribution of prize proceeds, are confined to public and private armed vessels, cruising under a regular commission, the only claim which can be sustained by the captors in cases like the present, must be in the nature of salvage for bringing in and preserving the property. In the present case, the district court have awarded one-half of the prize proceeds, or salvage, to the captors. It was an exercise of sound discretion; and this court would, with extreme reluctance, interfere with that discretion, unless in a very clear case of mistake. We per- ceive no such mistake in this case, and are well satisfied with the amount of the salvage as decreed by the district court. As to the question which has been made, whether the appeal was in due time, it appears, that the appeal was prayed for within five years, and was actually allowed by the court within that period. It is true that the security required by law was not given until after the lapse of the five years ; and, under such circumstances, the court might have disallowed the appeal, and refused the security. But, as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal. The mode of taking the security, and the time for perfecting it, are matters of discretion, to be regulated by the court granting the appeal ; and when its order is complied with, the whole has relation back to the time when the appeal was prayed. We must presume the security was given, in this case, according to the rule prescribed by the district court, and the appeal was, therefore, in time. Decree aflSrmed, with costs. *The Josefa Segunda. Roberts and others, clainaants. [*11I 10 Wheaton's Reports, 312.- The district courts have jurisdiction, under the slave trade acts, to determine who are the actual captors, under a state law made in pursuance of the fourth section of the slave trade act of 1 807, c. 77, and directing the proceeds of the sale of the negroes to be paid, "one moietjr for the use of the commanding officer of the capturing vessel," &c. In order to constitute a valid seizure, so as to entitle the party to the proceeds of a forfeiture, there must be an open, visible possession claimed, and authority exercised, under the seizure. A seizure, once voluntarily abandoned, loses its validity. A seizure, not followed by an actual prosecution, or by a claim, in the district court, before a hearing on the merits, insisting on the benefit of the seizure, becomes a nullity. Under the seventh section of the slave trade act of 1807, c. 77, the entire proceeds of the vessel -are forfeited to the use of the United States, unless the seizure be made by armed vessels of the navy, or by revenue cutters ; in which case distribution is to be made in the same manner as prizes taken from the enemy. Under the act of the state of Louisiana of the 13th of March, 1818, passed to carry into effect the fourth section of the slave trade act of congress of 1807, t. 77, and directing negroes imported contrary to the act to he sold, and the proceeds to bo paid, "one moiety for the use of the commanding officer of the capturing vessel, and the other moiety to the treasurer Vol. VI.— 13 I 97 Ill SUPREME COURT. [The Josefa Segunda.] of the charity hospital of New Orleans, for the utse and benefit of the said hospital ;" no other person is entitled to the first moiety than the commanding officer of the armed vessels of the navy, or revenue cutter, who may have made the seizure, under the seventh section of the act of congress. APPEAL from the circuit court of Louisiana. This is the same case which was reported in 5 Wheat. Rep. 338, 4 Cond. Rep. 672. It was a proceeding against the vessel,^ and the negroes taken on board of her, under the slave trade act of the 3d of March, 1807, ch. 7'7, in which the vessel was condemned in the court below, and that decree was affirmed on appeal, by this court. After the condemnation of the vessel in the district court, and before the appeal to this court, the negroes found on board of her were (under the fourth section of the act of congress, and under an act of the state of Louisiana, passed on the 13th of March, 1818, in pursuance of the act of congress) delivered by the collector of the customs for the port of New Orleans, to the sheriff of the parish of New Orleans, for sale according to law. A cross libel was afterwards filed by the alleged original Spanish owners, claiming restitution of the negroes, which was dismissed, and, on appeal, the decree affirmed by this court. By con- sent of all the parties in interest, the negroes were sold by the sheriff, *1 121 ^^^ ^^^ proceeds *lodged in the Bank of the United States, subject J to the order of the court below. After the cause had been re- manded to the district court, a question arose in that court, respecting the manner in which these proceeds, as well as those of the vessel and effects, were to be distributed, and the parties respectively entitled to them. Mr. Roberts, an inspector of the revenue, claimed a moiety of the proceeds as the original seizor or captor ; Messrs. Gardner, Meade, and Humphrey, respectively, made similar claims under subsequent military seizures alleged to be made by them; and Mr. Chew, the collector of the port of New Orleans, conjointly with the naval officer and surveyor of the port, filed a like claim as the true and actual captors and seizors, who made the last and only effectual seizure, and prose- cuted the same to a final sentence of condemnation. It appeared, by the evidence, that Roberts, being employed as an inspector in a revenue boat at the Balize, near the mouth of the Mis- sissippi, on the 18th of April, 1818, boarded the vessel, and declared that he had seized her. He, soon afterwards, went on shore, and put a person on board to take charge of the vessel, which remained at anchor opposite the block-house, until the 21st of April, when lieutenant Meade, with six soldiers in a boat, went from Fort St. Philip, in company with a custom-house boat, and Mr. Gardner, an officer of the customs, on board, took possession of the vessel, and brought her up under the guns of the fort. It appeared, that Roberts, afterwards, came on board the vessel, but did not remain on board until her arrival at the city of New Orleans, he having left her in order to board another vessel in the river. On the 21st of April, Mr. Chew, the collector at New Orleans, acting on independent information which he had received, sent an armed revenue boat, with an inspector of the customs, down the river, with instructions to seize the vessel. On arriving at Fort St. Philip, they found the vessel at anchor opposite the fort, with a sergeant's guard on board, which had been placed there by major Humphrey, the com- manding officer at tJje fiat. The inspector received from that officer FEBRUARY TERM, 1825. 112 [The Josefa Segunda.l the ship's papers, and took possession of the vessel and negroes, the guard having been withdrawn, and brought them up to the city of New Orleans. Proceedings were commenced against the property at the instance of Mr. Chew, and the other officers of the customs, and though his name was not inserted in the libel, the prosecution was conducted by him until its final determination, and the other parties claiming as captors or seizors, did not intervene until after the decree of this court on the appeal in the original cause. The court below pronounced a decree, dismissing the claims of Messrs. Roberts, Humphrey, Meade, and Gardner, and allowing that *of the collector and other officers of the customs, and the cause r^| . « was brought by appeal to this court. *- Mr. Livingston and Mr. Key, for the appellant, cited : The Alexan- der, 8 Cranch's Rep. 179. 3 Cond. Rep. 72. The Mary, 2 Wheat. Hep. 123. 4 Cond. Rep. 65. The Attorney-General, contra, cited : Hargr. Law Tracts, 226, 227. Mr. Justice Story delivered the opinion of the court. The case of the Josefa Segunda, in which the present controversy had its origin, is reported in the fifth volume of Mr. Wheaton's Reports. It is only necessary to mention, that after the condemnation of the vessel, in the district court of Louisiana, and before the intervention of the appeal to this court, the negroes seized on board of her, in pursuance of the act of congress, and the act of Louisiana, which will be hereafter commented on, were delivered by Mr. Chew (the collector of the customs) to the sheriff of the parish of New Orleans, to be sold ■ according to law ; and a few days afterwards a new libel, claiming the property of the negroes, having been filed by the Spanish owners, (which was afterwards dismissed, and on appeal, the dismissal con- firmed by this court,) by consent of all the parties in interest, the negroes were sold by the sheriff", and the proceeds lodged in the JBank of the United States, subject to the order of the district court. The question now in contestation respects the manner in which the proceeds of this sale, as well as of the sale of the vessel and effects, are to be distributed, and the parties who are entitled to them. Mr. Roberts, who is an inspector of the customs, claims title as the original seizor or captor ; Messrs. Gardner, Meade, and Humphrey, make a like claim under a subsequent military seizure made by them ; and Mr. Chew, and the surveyor and naval officer of the port of New Orleans, a like claim as the true and actual captors and seizors, who made the last and only effectual seizure, and prosecuted the same to a final decree of con- demnation. Mr. Chew caused the original libel against the vessel to be brought, and though his name is accidentally omitted in it as the officer through whose instrumentality the seizure was made, yet it is admitted, and indeed could not be denied, that he was the sole responsible prosecu- tor of the suit, until the final condemnation of the vessel, and the final dismissal of the second libel, brought by the original Spanish claimants. The claims of all the other parties now before the court, adverse to that of Mr. Chew, have intervened since the final judgment pronounced in the supreme court in the cause. The Josefa Segunda was finally condemned undei the seventh sec- 113 SUPREME COURT. [The Josefa Segunda.] tion of the slave trade act, of the 2d of March, 1807, ch. 77. It will *1141 *^^ necessary to refer to the terms of that section at large, -■ because the question here respects as well the distribution of the proceeds of the vessel (which must be made according to the rules prescribed in that section) as of the proceeds of the sale of the negroes, who were unlawfully brought into the United States ; and, in the pro- gress of the discussion, it will materially aid us in the decision of the latter, to ascertain who, by the construction of that section, are the captors entitled to the distribution of the former. The fourth section of the act of 1807 provides, that " neither the importer, nor any person or persons claiming from or under him, shall hold any right or title whatsoever to any negro, &c., who may be im- ported or brought within the United States, or territories thereof, in violation of this law ; but the same shall remain subject to any regu- lations, not contravening the provisions of this act, which the legisla- tures of the several states or territories, at any time hereafter, may make, for disposing of any such negro," &.c. Accordingly, the legis- lature of Louisiana, on the 13th of March, 1818, passed an act avow- edly to meet the exigency of this section, which act, after reciting the substance of the same section, proceeds to declare, that the sheriff of the parish of New Orleans is authorized arid required to ■ receive any negro, «&c., delivered to him in virtue of the act, of congress, until the proper court pronounces a decree of condemnation ; and after such condemnation, it authorizes him to sell such negro, &c., as a slave for life; and then declares, that "the proceeds of such sale shall, after deducting all charges, be paid over by the said sheriff, one moiety for the use of the commanding officer of the capturing vessel, and the other moiety to the treasurer of the charity hospital of New Orleans, for the use and benefit of the said hospital." There is no doubt that this act is not in contravention of the intention of the act of congress, for the sixth section contains a proviso, recognising the validity of such a sale, when made under the authority of a state law. Some objection has been suggested as to the jurisdiction of the dis- trict court of Louisiana to entertain the present proceedings, upon the ground that the distribution is to be made under this act by the sheriff of New Orleans. But upon a full consideration of the act of 1807, we are of opinion, that the objection cannot be maintained. By the judi- ciary act of 1789, as well as by the express provisions of the act of 1807, the district court has jurisdiction over seizures made under the latter act. The principal proceedings are certainly to be against the vessel, and the goods and effects found on board. But the negroes are also to be taken possession of, for the purpose of being delivered over to the state governments, according to the provision of the act ; and it is ob- ^, I r-i vious, *that this delivery can only be after a condemnation has 1 occurred, since it is only in that event that the state legislature can acquire any right to dispose of them. The proviso in the seventh section, that the officers to whom a moiety of the proceeds is given on condemnation, shall be so entitled only in case they safely keep and deliver over the negroes according to the laws of the states, operates by way of condition to the completion of their title; but does not im- port any requirement that the delivery shall be until after the condem- nation. On the contrary, as by a decree of restitution of the vessel 100 FEBRUARY TERM, 1825. 115 [The Josefa Segunda.] and eflfects, the claimants would be entitled to a restitution of the negroes, the reasonable construction seems to be, that they remain sub- ject to the order of the district court, as property in the custody of the law, though in the actual possession of the seizing officers. The pos- session of the latter is the possession of the court, as much in respect to the negroes as the vessel and cftrgo ; and it must remain until the court, by pronouncing a final decree, directs in what manner it is to be surrendered. In the present case, the negroes were sold, and the pro- ceeds substituted for them were in the custody of the court. It was, therefore, authorized to deliver them over to the parties who should be 'ntitled, under the state law. In terms, the state law required the delivery to the sheriff to the use of the parties; but who the parties were to whose use the sheriff must hold them, could not be ascertained by him, but must be awarded by the court, to whom, as an incident to the principal cause, it exclusively belonged. In what manner could any other court be authorized to ascertain who was the commanding officer of the capturing vessel ? The decree of the court, in distribut- ing the proceeds of the vessel and cargo, must necessarily involve this inquiry ; and certainly it cannot for a moment be maintained in argu- ment, that any other person than the commander of the capturing vessel, who would share the proceeds of the prize and her cargo, could be within the meaning of the law of Louisiana. The common form of drawing up decrees, in cases of condemnation, is, that the proceeds be distributed according to law. But if any difficulty arises, upon peti- tion, the court always proceeds to decide who are the parties entitled to distribution, and to make a supplementary decree. But it may do the same, in the first instance, and make the particulars of the distribu- tion a part of the original decree. In the present case, if the original decree had been drawn out at large, it ought to have been, that the negroes so captured, be delivered over to the sheriff of New Orleans for sale, according to the act of Louisiana in this behalf provided, and that the net proceeds of the sale be afterwards paid over, viz. one moiety to A. B., adjudged by the court to be the commanding officer of the capturing vessel, and *the other moiety to the charity r^-i-io hospital of New Orleans. This course of proceeding is very L familiar in prize causes ; where the court of admiralty always ascer- tains who are the captors entitled to the prize proceeds ; and the courts of common law will never entertain any jurisdiction over the proceeds until after such adjudication. Considering this cause, then, as a cause of admiralty and maritime jurisdiction, belonging exclusively to the courts of the United States, we are not aware how any other court could adjudge upon the question who were the captors or seizors en- titled to share the proceeds ; and we think that the district court has jurisdiction over the present proceedings. In respect to the claim of Mr. Roberts, we do not think that the evi- . dence establishes that he ever made any valid seizure of the vessel. It is not sufficient that he intended to make one, or that, on some occa- sions, he expressed to third persons that he had so done. There must be an open, visible possession claimed, and authority exercised under a seizure. The parties must understand that they are dispossessed, and that they are no longer at liberty to exercise any dominion on board of the ship. It is true, that a superior physical force is not necessary to 1 2 101 116 SUPREME COURT. [The Josefa Segunda.] be employed, if there is a voluntary acquiescence in the seizure and dispossession. If the party, upon notice, agrees to submit, and actually submits, to the command and control of the seizing officer, that is suffi- cient ; for, in such cases, as in cases of captures jure belli, a voluntary surrender of authority, and an agreement to obey the captor, supplies the place of actual force. But, here, Mr. Roberts gave no notice of the seizure to the persons on board ; he exercised no authority, and claimed no possession. He had no force adequate to compel submission ; and his appearance in the vessel gave no other -character to him than that of an inspector, rightfully on board, in performance of his ordinary duties. To construe such an equivocal act as a seizure, would b& un- settling principles. Messrs.Humphrey, Meade, and Gardner, certainly did make a seizure, by their open possession of the vessel, and bringing her under the guns of Fort St. Philip. But there is this objection to the seizure, both of Mr. Roberts (assuming that he made one) and of the other persons, that it was never followed up by any subsequent prosecution or proceedings. The seizure of Messrs.Humphrey, Meade, and Gardner, seems to have been voluntarily abandoned by them ; and even that of Mr. Roberts, if he made one, does not seem to have been persisted in. Now, a seizure, or capture, call it which we may, if once abandoned, without the influ- ence of superior force, loses all its validity, and becomes a complete nullity. Like the common case of a capture at sea, and a voluntary abandonment, it leaves the property open to the next occupant. But *n71 *^h^t 'S decisive in our view is, that neither of these gentlemen ^ ever attempted any prosecution, or intervened in the original proceedings in the district court, claiming to be seizors, which was in- dispensable to consummate their legal right ; and their claim was, for the first time, made after a final decree of condemnatioh in the supreme court. This was certainly a direct waiver of any right acquired by their original seizures. It is not permitted to parties to lie by, and allow other persons to incur all the hazards and responsibility of being held to damages in case the seizure turns out to be wrongful, and then to come in, after the peril is over, and claim the whole reward. Such a proceeding would be utterly unjust, and inadmissible. If the parties meant to have insisted on any right, as seizors, their duty was to have intervened in the district court before the hearing on the merits, accord- ing to the course pointed out by lord Hale in the passage cited at the bar, where there are several persons claiming to be seizors of forfeited property. In the present case, Mr. Chew actually advanced a consi- derable sum of money for the maintenance of these negroes during the pendency of the suit ; and if it had been unsuccessful he must have exclusively borne the loss. Upon the plain ground, then, that Mr. Roberts, and Messrs. Humphrey, Meade, and Gardner, have not followed up their seizure by any prosecution, such as the act of 1807 requires, we are of opinion, that there is no foundation, in point of law, for their claims. That Mr. Chew, on behalf of himself, and the surveyor and naval officer of the port of New Orleans, did make the seizure on which the prosecution in this case was founded, is completely proved by the evidence ; it is also admitted by the United States, in their answer to the libel of Messrs. Carricaberra, &c., the Spanish claimants, and is 102 FEBRUARY TERM, 1825. 117 [The Josefa Segunda.] averred by Mr. Chew, and his coadjutors, in their separate allegation and answer to the same libel. While the vessel lay at Fort St. Philip, armed boats, under revenue officers, were sent down by him, with orders to seize her, and bring her up to New Orleans for prosecution, which was done accordingly. The remaining question then is, whether Mr. Chew, for himself and his coadjutors in office, is to be considered as entitled to the proceeds of the vessel under the act of congress, and to the proceeds of the negroes, as " the commanding officer of the capturing vessel," within the sense of the Louisiana law. If he is entitled to the proceeds of the vessel and cargo, under the seventh section of the act of 1807, then, we think, he must be fairly considered as within the spirit, if not the letter, of the act of Louisiana. The seventh section is certainly not without difficulty in its con- struction. In the first clause it declares, that vessels found " in any river, *port, bay, or harbour, or on the high seas, within the juris- r#i i c dictional limits of the United States, or hovering on the coast L thereof, having on board any negro, &c., for the purpose of selling them as slaves, &c., contrary to the prohibitions of this act, shall be forfeited to the use of the United States, and may be seized, prosecuted and condemned, in any court of the United States having jurisdiction thereof." Under this clause, standing alone, it cannot be doubted, that any person might lawfully seize such a vessel at his peril, and if the United States should choose to adopt his act, and proceed to adjudica- tion, he would, in the event of a condemnation, be completely justified. But it may be considered as peculiarly the duty of the officers of the customs, to watch over any maritime infractions of the laws of the United States ; and by the collection act of 1799, ch. 128, s. 70, it is made the duty of all custom-house officers, as well within their districts as without, to make seizures of all vessels violating the revenue laws. The section, then, in the next clause, authorizes the president of the United States to employ any of the armed vessels of the United States to cruise on any part of the coast, to prevent violations of the act, and to instruct and direct the commanders of such armed vessels, to seize all vessels contravening the act, " wheresoever found on the high seas," omitting the words, " in any river, port, bay, or harbour," con- tained in the former clause. It then proceeds to declare, that the pro- ceeds of all such vessels, when condemned, " shall be divided equally between the United States, and the officers and men, who shall make such seizure, take or bring the same into port for condemnation, whether such service be made by an armed vessel of the United States, or revenue cutters thereof, and the same shall be distributed in like manner as is provided by law for the distribution of prizes taken from an enemy." In a strict sense, the present seizure was not made by an armed vessel of the United States, nor by a revenue cutter, which, by the act of 1799, ch. 128, s. 98, the president is at liberty to require to co-oper,ate with the navy. But if we consider these cases as put only by way of ex- ample, or if we give an enlarged meaning to the words " revenue cutter," so as to include revenue boats, such as the collector is, by the act of 1799, ch. 128, s. 101, authorized to employ, with the approbation of the treasury department, then th^ seizure of Mr. Chew may be brought ■ •' " 103 118 SUPREME COURT. [The Jusefa Segunda.] within the general terms of the act. The United States do not appear to have resisted this construction as to the proceeds of the sale of the Josefa Segunda. And, on the other had, if we consider, that the act meant to deal out the same rights to all parties who might seize the offending vessel, whether they were officers of armed vessels, or of revenue cutters, or merely private individuals, who may seize and #110-1 prosecute *to condemnation, then, under that construction, Mr. J Chew may be properly deemed the seizing officer, entitled, with his crew, to the proceeds or the vessel. If such a construction is not admissible, within the equity of the act, then it is a casus omissus, and the property yet remains undisposed of by law. Upon the best consideration which we have been able to give the case, we are of opinion, that it is a casus omissus, or rather, that all the beneficial interest vests in the United States. The first clause of the seventh section declares, that all vessels oflfending against it " shall be forfeited to the use of the United States," and may be seized, pro- secuted, and condemned, accordingly. The seizure may be made by any person ; but the forfeiture is still to be, by the terms of the act, for the use of the United States. If the act had stopped here, no diffi- culty in its construction could have occurred. As nothing is given by it to the seizing officer, nothing could be claimed by him except from the bounty of the government. The subsequent clause looks exclu- sively to cases where the seizure is made by armed vessels of the navy, or by revenue cutters, and directs, in such an event, a distribution to be made in the same manner as in cases of prizes taken from an enemy. Correctly speaking, these cases constitute exceptions from the pre- ceding clause, and take them out of the general forfeiture "to the use of the United States." It might have been a wise policy to have ex- tended the benefit of these provisions much farther, or to have given, as the act of the 20th of April, 1818, ch. 85, has given,'a moiety in all cases to the person who should prosecute the seizure to effect. But courts of law can deal with questions of this nature only so far as the legislature has clearly expressed its will. Mr. Chew appears to be a very meritorious officer, and deserving of public respect for his good conduct on this occasion. But as the act has made no provision for his compensation, he must be left, in common with those who made the military seizure, to the liberality of the government. The remarks which have been already made, dispose of the case, so far as respects the proceeds of the vessel, and we think they are deci- sive as to the claim to the proceeds of sale of the negroes. The case as to this matter is also a casus omissus in the act of Louisiana. That act had a direct reference to the act of congress, and " the command- ing officer of the capturing vessel," in the sense of the former, must mean the commanding officer of such an armed vessel, or revenue cutter, as is entitled to share in the distribution of the proceeds by the latter. It would be going very far to give a larger construction to the words than in their strict form they import ; and since they admit of a reasonable interpretation, by confining them to the cases provided for •1901 ^y congress, *we are satisfied that our duty is complied with, by J assigning to them this unembarrassed limitation. The decree of the district court, so far as it dismisses the claims of 104 FEBRUARY TERM, 1825. 120 [Bank of the United States v. The Bank of Georgia.] Messrs. Roberts, Humphrey, Meade, and Gardner, is affirmed, and so far as it sustains the claim of Mr. Chew, and the naval officer and sur- veyor of the port of New Orleans) is reversed. Decreed accordingly. The President, Directors and Company of the Bank of the United States v. The President, Directors and Company of the Bank of the State of Georgia. 10 Wheaton's Reports, 333. [n general, a payment received in forged paper, or in any base coin, is not good ; and if there be no negligence in the party, he may recover back the' consideration paid for them, or sue upon his original demand. But this principle does not apply to a payment made bona fide to a bank, in its own notes, which are received as cash, and afterwards discovered to be forged. ' Effect of acceptances, where the handwriting of the drawer has been forged. Bank notes are a part of the currency of the country ; they pass as money; and are a good tender, unless specially objected to. [See note at the end of the case.] In case of such a payment upon general account, an action may be maintained by the party paying the notes, if there is a balance due him from the bank upon their general account, either upon an insimul computassent, or as for money had and received. ERROR to the circuit court of Georgia. This was an action of assumpsit, brought by the plaintiffs in error, the president, &c., of the Bank of the IJnited States, against the de- fendants in error, the president, &c., of the Bank of the state of Georgia, in which the plaintiffs declared for the balance of an account stated, and for money had and received to their use. At the trial, the plain- tiffs offered evidence, to prove, that mutual dealings existed between the parties, in the course of which, each being in the receipt of the bills of the other, they mutually paid in or deposited the bills of the other party, at intervals, as each found the bills of the other party had accumulated to any considerable amount in their respective vaults; and *upon each of such payments or deposits, the amount thereof r^igi was entered as so much " cash" in the customer's book of the L party depositing, by the proper officer of the bank receiving the same ; from which said book of the plaintiffs, which was given in evidence, it appeared that the sum of six thousand nine hundred dollars was the balance due from the defendants to the plaintiffs, at the time of insti- tuting this action. The plaintiffs also offered evidence, that the trans- actions between the parties were almost exclusively in the deposits of their respective bills as aforesaid. And the defendants, to maintain their said defence, offered evidence to prove, that in one of the said deposits so made by the plaintiffs, in the bank of the defendants, and so entered in the said book of the plaintiffs by the proper officer of the defendants, at the time the said deposit was made, to wit, on the 25th of February, in the year 1819, and which is one of the items comprised Vol. VI.— 14 105 121 SUPREME COURT. [Bank of the United States v. The Bank of Georgia.] in the account upon which the balance was claimed by the plaintiffs, there were paid ifa thirty-eight bills of the defendant's own issues or notes, of five dpllars each, which had been fraudulently altered by some person or persons unknown, from the denomination of five to that of fifty ; and forty bills of the defendant's own issues or notes of ten dollars each, which had in like manner been fraudulently altered by some person or persons unknown, to that of hundreds, making together the sum of five thousand nme hundred dollars, demanded by the plain- tiffs in this action ; which said bills or notes had been subsequently tendered by the defendants to the plaintiffs, before the institution of this action, and by the plaintiffs refused. The plaintiffs then offered evidence to prove that no notice or intimation of the said fraudulent alteration aforesaid was given by the defendants to the plaintiffs, until the 16th of March, 1819, and that the tender to return the said altered notes to the plaintiffs by the defendants, was not made until the 17th of March, 1819, nineteen days after the receipt of the said notes by the defendants from the plaintiffs, and the entry of the same in the customer's book of the plaintiffs. The defendants further offered evidence to prove, that the said altered bills, so deposited by the plaintiffs and received by the defendants, had been received by the plaintiffs from the Planters' and Merchants' Bank of Huntsville, concerningwhich notes a correspondence had taken place between the plaintiffs and the said Planters' and Mer- chants' Bank of Huntsville, subsequently to the detection of the said fraudulent alteration, in the following words and figures, to wit : " Office Bank U. States, Savannah, 17th of March, 1819. Edward Rawlins, Esq., Cashier Planters' and Merchants' Bank of Huntsville. Sir, Upon a more minute investigation of the bills received last month from Mr. Hobson, of your bank, it turns out that forty of the one hun- *1991 ^^^^ *dollar notes of the state bank of this place, were altered -' from ten dollars, and fifty-eight of the fifty dollar notes of the same bank were altered from five dollar notes, producing against us a differ- ence in the hundred dollar notes of three thousand six hundred dollars, and in the fifty, two thousand six hundred and ten dollars, making the whole difference six thousand two hundred and ten dollars. By the person which we shall in a few days send to your place, as heretofore intimated, we will forward these altered bills for the purpose of getting you to exchange them for other money." "EiiEAZAR Early, Cashier." " P. S. Herein I enclose, for your future security, the official notice of the banks of Georgia, pointing out the difference between the ge- nuine and altered bills. E. E., Cashier." " Office Bank United States, Savannah, 25th March, 1818. Le Roy Pope, Esq., President Bank Huntsville. Sir, Will you suffer me to introduce to your acquaintance and kindness, the bearer, Mr. Heine- mann, our teller, whose objects have already been imparted to you in my letters of 23d February and ISth instant, (copies in Mr. H.'s pos- session,) and which we doubt not will receive every facility from your institution. Mr. Heinemann is also instructed to lay before you formal notice of a claim which we shall make on your bank for the spurious notes received from Mr. Hobson, in the event of our being cast in the suit about to be brought between the Bank of Georgia and ourselves in the case. It has been deemed a better course than that proposed in 106 FEBRUARY TERM, 1825. 122 [Bank of the United States v. The Bank of Georgia.] our cashier's letter to Mr. Rawlins, your cashier, of the 17th instant, and will, no doubt, be more agreeable to you. Your obedient servant, " R. Richardson, President." " Planters' and Merchants' Bank of Huntsville, 4th May, 1819. R. Richardson, Esq., President, Office Bank United States, Savannah. Sir, Your favour under date of the 2.5th, has been handed me by Mr. Heine- mann, wherein you give me notice, that your bank holds this institution bound to make good the amount of the spurious notes which you say was received from Mr. Hobson, in the event of your being cast in a suit about to be brought between the Bank of Georgia and yourselves. I am directed by the board of directors to state to you, that they highly approve of the course your bank have adopted ir) regard to these spu- rious notes, and we shall cheerfully acquiesce with the decision of the court, let that be what it may. I am, respectfully, your obedient servant, Le Roy Pope, President." And the plaintiffs further offered evidence to prove that the officers of the defendants, at the time of receiving the said altered notes, had in their possession a certain book, called the bank note register of the said bank of the state of Georgia, wherein were registered, and recorded, *the date, number, letter, amount, and payee's name, of all the r#ioo notes ever issued by the said bank, by means of which, and by L reference whereto, the forgeries or alterations aforesaid could have been promptly and satisfactorily detected ; and further that so far as related to the said notes purporting to be the notes of one hundred dollars, all the genuine notes of the defendants of that amount in circu- lation on the said 25th of February, 18l9, were marked with the letter A, whereas twenty-three of the notes of one hundred dollars each, so received by the defendants as genuine notes, when in fact they were altered notes, bore the letters B, C, or D. And the defendants further offered evidence to prove, that the altera- tion in the said notes consisted in extracting the ink of certain printed figures and words which expressed the amount of said notes, and sub- stituting therefor other printed figures and words; the signatures, and every other part of said notes, remaining unaltered. Whereupon, the parties having offered the above evidence, the plaintiffs prayed the court : 1. To instruct the jury, that if they believed the said evidence, the said plaintiffi were entitled to recover of the said defendants the whole sum of six thousand nine hundred dollars, being the balance so ex- hibited by their customer's book aforesaid, and as due from the said defendants to the said plaintiffs ; which instruction the judges afore- said, being divided in opinion, refused to give ; and the counsel for the plaintiffs excepted to the refusal. 2. The plaintiffs prayed the court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover of the defendants, the sum of six hundred and ninety dollars, being the original value of the altered notes ; which instruction the said judges, being divided in opinion, did not give ; to which refusal the said coun- sel for the plaintiffs excepted. 3. The plaintiffs prayed the court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover q|. the defendants the whole sum of six thousand nine hundred ■dollars', " 107 123 SUPREME COURT [Bank of the United States v. The Bank of Georgia.] being the balance so exhibited by their customer's book aforesaid, as due from the defendants to the plaintiffs, with legal interest thereon from the day of instituting their action aforesaid ; which instruction the judges aforesaid, being divided in opinion, refused to give ; to which refusal the counsel for the plaintiffs excepted. Judgment being rendered upon this bill of exceptions, for the defendants in the court below, the cause was brought by writ of error to this court. *1241 *^^ ^^^ insisted, on the part of the plaintiffs, that the judgment J ought to be reversed, on the following grounds : 1. That what took place on the 25th of February, 1819, between the parties, was not only equivalent to payment, but was payment itself^ and the defendants are, in all respects, to be considered as if they were suing to recover back the money. 2. That if understood only as an acceptance, or agreement to pay,, the principle would still be the same. 3. That, in either case, the plaintiffs were entitled to recover. The cause was argued by Mr. Sergeant, for the plaintiffs, who cited : Bolton V. Richards, 6 Term Rep. 139. The Manhattan Company v. Lidig, 4 Johns. Rep. 377. Levy v. The Bank of the United States, 4 Ball. Rep. 234. S. C. I Binn. Rep. 27. Chitty on Bills, 483. Smith V. Chester, 1 Term Rep. 655. Bass v. Clive, 4 Maul, and Selw. 15. Master v. Miller, 4 Term Rep. 320. Barber v. Gignell, 3 Esp. JV. P. 60. Jordain v.. Lashbrook, 7 Term Rep. 604. Price i;. Neal, 3 Burr. Rep. 1354. Jones v. Ryde, 5 Taunt. Rep. 488. Markle v. Hatfield, 2 Johns. Rep. 462. Gloucester Bank v. The Salem Bank, 17 Mass. Rep. 33. Smith v. Mercer, 6 Taun,t. Rep. 76. Meade v. Young, 4 Term Rep. 28. Jenys v. Fowler, 2 Str. Rep. 946. Mr. Berrien, for the defendants, cited : Gates v. Winslow, 1 Mass. Rep. 66. Meade v. Young, 4 Term Rep. 28. Kyd on Bills, 202, 203. Lambert v. Oakes, 1 Lord Raym. 443. Union Bank v. The Ba:nk of the United States, 3 Mass. Rep. 74. 1 Johns. Cas. 145. 5 Johns. Rep. 68. 2 Term Rep. 366. Buller v. Harrison, Cowp. Rep. 565. Miller v. Race, 1 Burr. Rep. 457. 2 Evans's Pothier, 19, 495. Toby V. Barber, 5 Johns. Rep. 72. Mr. Justice Story delivered the opinion of the court. This is a case of great importance in a practical view, and has been very fully argued upon its merits. The Bank of Georgia having ori- ginally issued the bank notes in question, they were, in the course of circulation, fraudulently altered, and having found their way into the Bank of the United States, the latter presented them to the former, who received them as genuine, and placed them to the general account of the Bank of the United States, as cash, by way of general deposit. The forgery was not discovered until nineteen days afterwards, upon which, notice was duly given, and a tender of the notes was. made to the Bank of the United States, and by them refused. Both parties are equally innocent of the fraud, and it is not disputed, that the Bank of the United States were holders, bona fide, for a valuable consideration. Under these circumstances, the question arises, which of the parties is to bear ^.jj^-i *the loss, or, in other words, whether the plaintifis are entitled to -I recover, in this action, the amount of this deposit. 108 FEBRUARY TERM, 1825. J 25 [Bank of the United States v. The Bank of ffeorgia.] Rome observations have been made as to the form of the action, the: declaration embracing counts for the balance of an account stated, as well as for money had and received, &;c. But, if the plaintiffs are en- titled to recover at all, we see no objection to a recovery upon either of these counts. The sum sued for is thei balance due upon the general account of the parties, and it is money had and received to the use of the plaintiffs, if the transaction entitled the plaintiffs to consider the deposit as money. It is clearly not the case of a special deposit, where the identical thing was to be restored by the defendants ; the notes were paid as money upon general account, and deposited as such ; so that, according to the course of business, and the understanding of the parties, the identical notes were not to be restored, but an equal amount in cash. They passed, therefore, into the general funds of the Bank of Georgia, and became the property of the bank. The action, has, there- fore, assumed the proper shape, and if it is maintainable upon the merits, there is no diffirnlty in point of form. We may lay out of the case, at once, all consideration of the point, how far the defendants would have been liable, if these notes had been the notes of any other bankj deposited by the plaintiff, in the Bank of Georgia, as cash. That might depend upon a variety of considerations, such as the usages of banks, and the implied contract resulting from their usual dealings with their customers, and upon the general princi- ples of law applicable to cases of this nature. The modern authorities certainly do, in a strong manner, assert, that a payment received in forged paper, or in any base coin, is not good ; and that if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon bis original demand. To this effect are the authori- ties cited at the bar, and particularly Markle v. Hatfield, 2 Johns. Rep. 455. Young v. Adams, 6 Mass. Rep. 182. Jones v. Ryde, 5 Taunt. Rep. 488. But, without entering upon any examination of this doc- trine, it is sufficient to say, that the present is not such a case. The notes in question were not the notes of another bank, or the security of a third person, but they were received and adopted by the bank as its own genuine notes, in the most absolute and unconditional manner. They were treated as cash, and carried to the credit of the plaintiff in the same manner, and with the same general intent, as if they had been genuine notes or coin. Many considerations of public convenience and policy would author- ize a distinction between cases where a bank receives forged notes pur- porting to be its own, and those where it receives the notes of other ♦banks in payment, or upon general deposit. It has the benefit r^-iof; of circulating its own notes as currency, and commanding there- L by the public confidence. It is bound to know its own paper, and pro- vide for its payment, and must be presumed to use all reasonable means, by private marks and otherwise, to secure itself against forgeries and impositions. In point of fact, it is well known, that every bank is in the habit of using secret marks, and peculiar characters, for this pur- pose, and of keeping a regular register of all the notes it issues, so as to guide its Own discretion as to its discounts and circulation, and to enable it to detect frauds. Its own security, not less than that of the public, requires Such precautions. Under such circumstances, the receipt by a bank of forged notes, K 109 126 SUPREME COURT. [Bank of the United States v. The Bank of Georgia.] purporting to be its own, must be deemed an adoption of them. It l;as the means of knowing if they are genuine ; if these means are not cm- ployed, it is certainly evidence of a neglect of that duty, which the public have a right to require. And in respect to persons equally inno- cent, where one is bound to know and act upon his knowledge, and the other has no means of knowledge, there seems to be no reason for bur- dening the latter with any loss in exoneration of the former. There is nothing unconscientious in retaining the sum received from the bank in payment of such notes, which its own acts have deliberately assumed to be genuine. If this doctrine be applicable to ordinary cases, it must apply with greater strength to cases where the forgery has not been detected until after a considerable lapse of time. The holder, under such circumstances, may not be able to ascertain from whom he re- ceived them, or the situation of the other parties may be essentially changed. Proof of actual damage may not always be within his reach ; and therefore to confine the remedy to cases of that sort would fall far short of the actual grievance. Th'e law will, therefore, pre- sume a damage actual or potential, sufficient to repel any claim against the holder. Even in relation to forged bills of third persons received in payment of a debt, there has been a qualification engrafted on the general doctrine, that the notice and return must be within a reasona- ble time ; and any neglect will absolve the payer from responsibility. If, indeed, we were to apply the doctrine of negligence to the present case, there are circumstances strong to show a want of due diligence and circumspection on the part of the Bank of Georgia. It appears from the statement of facts, that all the genuine notes of that bank of the denomination of one hundred dollars, in circulation at this time, were marked with the letter A ; whereas twenty-three of the forged notes of one hundred dollars bore the marks of the letter B, C, *197n *^"*^ ■^" These facts were known to the defendants, but unknown -■ to the plaintiffs ; so that by ordinary circumspection the fraud might have been detected. The argument against this view of the subject, derived from the fact, that the defendants have received no consideration to raise a promise to pay this sum, since the notes were forgeries, is certainly not of itself sufficient. There are many cases in the law, where the party has re- ceived no legal consideration, and yet in which, if he has paid the money, he cannot recover it back ; and in which, if he has merely pro- mised to payj it may be recovered of him. The first class of cases often turns upon the point, whether in good faith and conscience the money can be justly retained ; in the latter, whether there has been a credit thereby given to or by a third person, whose interest may be materially affected by the transaction. So that, to apply the doctrine of a want of consideration to any case, we must look to all the circumstances, and decide upon them all. Passing from these general considerations, it is material to inquire, how, in analogous cases, the law has dealt with this matter. The present case does not, indeed, appear to have been in terms decided in any court ; but if principles have been already established, which ought 10 govern it, then it is the duty of the court to follow out those princi- ples on this occasion. 110 FEBRUARY TERM, 1825. 127 [Bank of the United States v. The Bank of Georgia.] The case has been argued in two respects ; first, as a case of pay- ment, and, secondly, as a case of acceptance of the notes. la respect to the first, upon the fullest examination of the facts, we are of opinion, that it is a case of actual payment. We treat it, in this respect, exactly as the parties have treated it, that is, as a case where the notes have been paid and credited as cash. The notes have not been credited as notes, or as a special deposit ; but the transaction is precisely the same as if the money had been first paid to the plaintiffs, and instantaneously the same money had been deposited by them. It can make no difference that the same agent is employed by both par- ties, the one to receive, and the other to pay and credit. Upon what principle is it, then, that the court is called upon to construe the act different from the avowed intention of the parties ? It is not a case where the law construes an act done with one intent to be a different act, for the purpose of making it available in law ; to do that, cy pres, which would be defective in its direct form. Here the parties were at liberty to treat it as they pleased, either as a payment of money, or as a credit of the notes. In either way it was a legal proceeding, effectual and perfect ; and as no reason exists for a different construction, we think that the parties, by treating it as a cash deposit, must be deemed *to have considered it as paid in money, and then deposited ; r^inc since that is the only way in which it could legally become, or L be treated as cash. Nor is there any novelty in this view of the trans- action. Bank notes constitute a part of the common currency of the country, and, ordinarily, pass as rnoney. When they are received as payment, the receipt is always given for them as money. They are a good tender as money, unless specially objected to ; and, as lord Mans- field observed, in Miller v. Race, 1 Burr. Rep. 457, they are not, like bills of exchange, considered as mere securities or documents for debts. If this be true in respect to bank notes in general, it applies, a fortiori, to the notes of the bank which receives them ; for they are then treated as money received by the bank, being the representative of so much money admitted to be in its vaults for the use of the depositor. The same view was taken of this point in the case of Levy v. The Bank of the United States, 4 Ball. Rep. 234, 1 Binn. Rep. 27, where a forged check had been accepted by the bank, and carried to the credit of the plaintiff" (a depositor) as cash, and upon a subsequent discovery of the fraud, the bank refused to pay the amount. The court there said, "it is our opinion, that when the check was credited to the plaintiff" as cash, it was the same thing as if it had been paid ; it is for the interest of the bank that it should be so taken. In the latter case, the bank would have appeared as plaintiff's; and every mistake which could have been corrected in an action by them, may be corrected in this action, and none other." The case of Bolton v. Richards, 6 D. and E. 138, is not, in all its circumstances, directly in point ; but, there, the court manifestly considered the carrying of a check to the credit of a party, was equivalent to the transfer of so much money in the hands of the banker, to his account. Considering, then, the credit in this case as a payment of the notes, the question arises, whether, after a payment, the defendants would be permitted to recover the money back ; if they Avould not, then they 111 128 SUPREME COURT. [Bank of the United States v. The Bank of Georgia.] have no right to retain the money, and the! plaintiffs are entitled to a recovery in the present suit. In Price v. Neale, 3 Burr. Rep. 1355, there were tvFo bills of ex- change, which had been paid by the drawee, the drawer's handwriting being a forgery; one of these bills had been paid, when it became due, without acceptance ; the other was duly accepted, and paid at matu- rity. Upon discovery of the fraud, the drawee brought an action against the holder to recover back the money so paid, both parties , being admitted to be equally innocent. Lord Mansfield, after adverting to the nature of the action, which was for money had and received, in which no recovery could be had, unless it be against conscience for the defendant to retain it, and that it could not be affirmed that it was *1 9Q1 '^unconscientious for the defendant to retain it, he having paid J a fair and valuable consideration for the bills, said, " here vv^as no fraud, no wrong. It was incumbent upon the plaintiff to be satis- fied that the bill drawn upon him was the drawer's hand, before he accepted or paid it. But it was not incumbent upon the defendant to inquire into it. There was notice given by the defendant to the plain- tiff, of a bill drawn upon him, and he sends his servant to pay it, and take it up. The other bill he actually accepts, after which, the de- fendant, innocently and bona fide, discounts it. The plaintiff lies by for a considerable time after he has paid these bills, and then found out that they were forged. He made no objection to them at the time of paying them. Whatever neglect there was, was on his side. Tb« defendant had a,ctual encouragement from the plaintiff for negotiating the second bill, from the plaintiff's having, without any scruple or hesi- tation, paid the first ; and he paid the whole value bona fide. It is a misfortune which has happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one innocent man upon another innocent man. But, in this case, if there was any fault or negligence in anyone, it certainly was in the plaintiff, and not in the defendant." The whole reasoning of this case applies with full force to that now before the court. In regard to the first bill, there was no new credit given by any accept- ance, and the holder was in possession of it before the time it was paid or acknowledged. So that there is no pretence to allege, that there is any legal distinction between the case of a holder before or after the acceptance. Both were treated in this judgment as being in the same predicament, and entitled to the same equities. The case of Neal v. Price has never since been departed from ; and, in all the subsequent decisions in which it has been cited, it has had the uniform support of the court, and has been deemed a satisfactory authority. The case of Smith V. Mercer, 6 Taunt. Rep. 76, was a stronger application of the principle. There, the acceptance was a forgery, and it purported to be payable at the plaintiff's, who was a banker, and paid it, at maturity, to the agent of the defendant, who paid it in account with the defendant. A week afterwards the forgery was discovered, and due notice given to the defendant. But the court (Mr. Justice Chambre dissenting) decided, that the plaintiff was not entitled to recover. Two of the judges pro- ceeded upon the ground, that the banker was bound to know the hand- writing of his customers ; and that there was a want of caution and negligence on the part of the plaintiff. The chief justice, without dis- FEBRUARY TERM, 1825. 139 [Bank of the United States t>. The Bank of Georgia,] senting from this ground, put it upon the narrower ground, that during the whole week the bill must be considered as paid, and if the defendant were *now compelled to pay the money back, he could not re- p,, „^ cover against the prior endorsers; so that he would sustain the L l**" whole loss from the negligence of the plaintiff. The very case occurred in the Gloucester Bank v. The Salem Bank, 17 Ahss. Rep. 33, where forged notes of the latter had been paid to the former, and, upon a sub- sequent discovery, the amount was sought to be recovered back. The authorities were there elaborately reviewed, both by the counsel and the court, and the conclusion to which the latter arrived was, that the plaintiffs were not entitled to recover, upon the ground, that by re- ceiving and paying the notes, the plaintiffs adopted them as their own, that they were bound to examine them when offered for payment, and if they neglected to do it within a reasonable time, they could not afterwards recover from the defendants a loss occasioned by their own negligence. In that case, no notice was given of the doubtful character of the notes until fifteen days after the receipt, and no actual averments of forgery until about fifty days. The notes were in a bundle when received, which had not been examined by the cashier until after a considerable time had elapsed. Much of the language of the court as to negligence, is to be referred to this circumstance. The court said, " the true rule is, that the party receiving such notes must examine them as soon as he has opportunity, and return them immediately. If he does not, he is negligent, and negligence will defeat his right of action. This principle will apply in all cases where forged notes have been received, but certainly with more strength, when the party re- ceiving them is the one purporting to be bound to pay. For he knows . better than any other whether they are his notes or not ; and if he pays them, or receives them in payment, and continues silent after he has had sufficient opportunity to examine them, he should be considered as having adopted them as his own." Against the pressure of these authorities there is not a single oppos- ing case ; and we must, therefore, conclude, that, both in England and America, the question has been supposed to be at rest. The case of Jones V. Ryde, 5 Taunt. Rep. 488, is clearly distinguishable, as it ranged itself within the class of cases, where forged securities of third persons had been received in payment. Bruce v. Bruce, 5 Taunt. Rep. 495, is very shortly and obscurely reported ; but from what is there mentioned, as well as from the notice taken of it by lord chief justice Gibbs, in Smith v. Mercer, 6 Taunt. Rep. 77, it must have turned on the same distinction as Jones v. Ryde, and was not governed by Price V. Neal. But if the present case is to be considered, as the defendants' counsel is most solicitous to consider it, not as a case where the notes have been *paid, but as a case of credit, as cash, upon the receipt of them, r#ioi it will not help the argument. In that point of view, the notes L niust be deemed to have been accepted by the defendants, as genuine notes, and payment to have been promised accordingly. Credit was given for them, as cash, by the defendants, for nineteen days, and, during all this period, no right cpuld exist in the plaintiffs to recover the amount against a;ny other person, from whom they were received. By such delay, according to the doctrine of lord chief justice Gibbs, in Vol. VI.— 15 k2 113 181 SUPREME COURT. [Bank Df the Unitea States u. The Bank of Georgia.] Smitli V. M«i-cer,.6 Taunt. Hep. ?6, the prior holders would be dis- charged ; and the case of the Gloucester Bank v. The Salem Bank, 17 Mass. Rep. 33, adopts the same principle ; so that there would be a loss produced by the negligence of the defendants. But, waiving this narrower view, we think the case may be justly placed upon the broad ground, that there was an acceptance of the notes as genuine, and that it falls directly within the authorities which govern the cases of accept- ances of forged drafts. If there be any difference between them, the prin- ciple is stronger here than there ; for there, the acceptor is presumed to know the drawer's signature. Here, a fortiori, the maker must be presumed, and is bound, to know his own notes. He cannot be heard to aver his ignorance ; and when he receives notes, purporting to be his own, without objectioB, it is an adoption of them as his own. The general quesrtion, as to the effect of acceptances, has repeatedly come under the consideration of the courts of common law. In the early case of Wilkinson v. Luteridge, 1 Str. 648, the lord chief justice considered that the acceptance of the bill was, in an action against the acceptor,, a sufficient proof of the handwriting of the drawer ; but it was not conclusive. In the subsequent case of Jenys v. Fancier, 2 Str. 946, the lord chief justice would not suffer the acceptor to give the evidence of witnesses, that they did not believe it the drawer's hand- writing, from the danger to negotiable notes ^ and he strongly inclined to think, that actual forgery would be no defence, because the accept- ance had given the bill a credit to the endorsee. Subsequent to this was the case of Price ». Neal, already commented en, in which it was thought that the acceptor ought to be conclusively bound by his ac<;ept- ance. The correctness of this doctrine was recognised by Mr. Justice Buller, in Smith v. Chester, 1 D. and E. 655; by Lord Kenyon, in Barber V. Gingell, 3 fkp. Rep. 60, where he extended it to an implied accept- ance ; and by Mr. Justice Dampier, in Bass v. Cline, 4 M. and Selw. 15 ; and it was acted upon by necessary implication by the court, in Smith V. Mercer, € Taunt., Rep. 76. In Levy v. The Bank of the United States, 1 Binn. 27, already referred to, where a forged check, drawn upon the bank, had been accepted by the latter, and carried to the *1 ^21 ^''^'1'* °^ *^^ plaintiff, *and on the refusal of the bank afterwards -I to pay the amount, the suit was brought, the court expressly held the plaintiff entitled to recover, upon the ground that the acceptance concluded the defendant. The case was very strong, for the fraud was discovered a few hours only after the receipt of the check, and imme- diate notice given. But this was not thought in the slightest degree to vary the legal result. " Some of the cases," said the court, " decide that the acceptor is bound, because the acceptance gives a credit to the bill, &c. But the modern cases certainly notice another reason for his liability, which we think has much good sense in it, namely, that the acceptor is presiimed to know the drawer's handwriting, and by his acceptance to take this knowledge upon himself." After some research, we have not been able to find a single case, in which the general doc- trine, thus asserted, has been shaken, or even doubted; and the dili- gence of the counsel for the defendants on the present occasion, has not been more successful than our own. Considering, then, as we do, that the doctrine is well established, that the acceptor is bound to know the handwriting of the drawer, and cannot defend himself from payment 114 FEBRUARY TERM, 1825. 1S2 [Bank of the United States v. The Bank of Georgia.] by a subsequent . discovery of the forgery, we are of opinion, that the' present case falls directly within the same principle. We think the defendants were bound to know their own notes, and having once accepted the notes in question as their own, they are concluded by their act of adoption, -and cannot be permitted to set up the defence of forgery against the plaintiffs. It is not thought necessary to go into a consideration of other cases cited at the bar, to establish, that the acceptor may show that the accepted bill was void in its origin, as made in violation of the stamp act, &c. ; for all these cases admit the genuineness of the notes, and turn upon questions of anothei nature, of public policy, and a violation of the laws of the land. Nor are the cases applicable, in which bills have been altered after they were drawn, or of forged endorsements, for these are not facts whicfe an acceptor is pwesumed to know. Nor is it deemed material to consider in what cases receipts and stated accounts may be opened for surcharge and falsification. They depend upon other principles of general application. It is sufficient for us to declare, that we jylace our judgment in t1ie present case, upon the ground, that the defendants were bound to know their own notes, and having received them without objection, they cannot now recall their assent. We think this doctrine founded on public policy and convenience ; and that actual loss is not necessary to be proved, for potential loss may exist, and the law will always presume a possible loss in cases of this nature. The remaining consideration is, whether there has been a legal waiver of the rights of the plaintiffs derived under the cash deposit, or *in other words, whether they have consented to treat it as a rj^ioo nullity. There is nothing on which to rest such a defence, un- ■- less it is to be inferred from the letter of Mr. Early, the cashier of the Bank of the United States, tinder date of the 17th of March, 1819, addressed to the cashier of the Bank of Huntsville. That letter con- tains information of the forgery of the notes, and then proceeds, " by the person which we shall in a few days send to your place, as hereto- fore intimated, we will forward these altered bills for the purpose of getting you to exchange them for other money." Now, there is no evidence that this letter was ever shown to the Bank of Georgia, or its contents ever brought to the cognisance of its officers. It states no agreement to take back the notes, or to transmit them, on account of the Bank of the United States, to Huntsville. For aught that appears, the intention may have been to transmit them on account of the Bank of Georgia, under the expectation that the latter might desire it. But what is almost conclusive on this point is, that on the same day the Bank of Georgia had made a tender of the notes to the plaintiffs, which had been refused. This is wholly inconsistent with the notion that they had agreed to take them back, or to treat the previous credit as a nullity. Assuming, therefore, that the cashier had a general or special authority for the purpose of extinguishing the rights of the plaintiffs, growing out of the prior transactions, (which is not established in proof,) it is sufficient to say, that it is not shown that he exercised such an authority. And the case of Levy w. The Bank of the United States affords a very strong argument, that a waiver, without some new con- sideration, upon a sudden disclosure, and under a mistake of legal rights, ought not to be conclusive to the prejudice of the party, where. 133 SUPREME COURT. [Bank of the United States v. The Bank of Georgia.] upon farther reflection, he refuses to acquiesce in it. The subsequent letter of the 25th of March, demonstrates, that the intention of waiving the rights of the bank, if ever entertained, had been at that time en- tirely abandoned. The letter from the Huntsville Bank, of the 4th of May, cannot vary the legal result. What might be the rights of the plaintiffs against that Bank, in case of an unsuccessful issue of the present cause, it is unne- cessary to determine. The contract, whatever it may be, is res inter alios acta, from which the defendants cannot, and ought not to derive any advantage. It only remains to add, that if the plaintiffs are entitled to recover the principal, they are entitled to interest from the time of instituting the suit. Upon the whole, it is the opinion of the court, that the circuit court erred in refusing the first and third instructions prayed for by the *n41 plaintiffs; *and for these errors the judgment must be reversed, J with directions to award a venire facias de novo. On the se- cond instruction asked by the plaintiffs, it is unnecessary to express any opinion. Judgment reversed accordingly. Tender and refusal. Where a party makes his claim for a payment in specie, and declares he will receive no other money, it is perhaps unnecessary for the other party to exhibit the money in which he might lawfully pay : but the obligation to make a tender agreeably to law is not dispensed "with, and it must appear that the money was actually in the possession of the party making the tender. Searight v. Calbrailh, i DM. 325. A tender and refusal is equal to a performance ; but where the tender is made upon a con- dition which the party had not iinder the contract, it is a nullity. Hepburn and Dundaa v. Auld, 1 Cranch, 321; 1 Cond. Eep. 323. The cestui que trust cannot call the trust property out of the hands of the trustee, without paying or tendering as well all the necessary and proper sums advanced by the trustee on account of the trust property, as the original debt and interest existing as a lien upon it. Barlccr v. Parkenhom, 2 Wash. C. C. K. 142. But the conduct of the trustee may dispense with the making an actual tender. Ibid. Still, however, after having once relieved the cestui que trust from this necessity, the conduct of the parties subsequently, may be such as to reinstate them in their original rights and duties. Ibid. In an action on a bond, if the condition is not parcel of the obligation, as if it be a money penalty, and the engagement be to deliver goods, it is not necessary for the defendant to plead encore prist. Savary v. Goe, 3 Wash. C. C. K. 140. A plea to an action on a bond conditioned to deliver goods at a certain time and place, that the defendant was ready and willing to deliver to the plaintiff at the time and place appointed, but the plaintiff was not then and there to accept, is bad on demurrer : the plea should state that the defendant was at the place appointed, in person, or by agent, ready to deliver, &c. Ibid. If money is to be paid, or any other act to be done on a certain day and at a certain place, the legal time of performance is at the last convenient hour of the day for transacting the business. But if the parties meet at the place on any part of the day, a tender and refusal, though not at the last convenient hour, is sufficient. Ibid. So if the place be fixed, and the act is to be done on or before a certain day, or in all of a certain month, yet the defendant cannot plead a readiness to perform, and the absence or want of readiness of the other party at any time prior to the last convenient hour of the last day. Ibid. The refusal of a purchaser to take the goods which he has contracted to buy, dispenses with any necessity on the part of the vendor to make a tender of them. Calhoun v. Vechio, 3 Wash. C. C. R. 165. One bound to do a thing must either do it or offer to do it; if no objections are made, he 3iust show he made the tender in a regular manner ; hut this is not necessary, if the other 116 FEBRUARY TERM, 1825. 134 [Keplinger v. De Young.] party hy his conduct Jispenses with a regular tender by a previous refusal to accept It. Blight's executrix, Jj-c. v. Ashley et al., 1 Peters's C. C. R. 15. After the refusal to accept a tender, the party refusing cannot be permitted to say the other would not have done what he offered to do. Ibid. Peters's Digest, " Tender." *Keplinger v. De Young. [*135 10 Wheaton'a Reports, 358. A, having obtained a patent for a new and useful improvement, to wit, a machine for making watch chains, brought an action, under the third section of the patent act of 1800, c. 179, for a violation of his patent-right, against B ; and on the trial, an agreement was proved, made by the defendant with C, to purchase of him all the watch chains, not exceeding five gross a week, which he might be able to manufacture within six months, and an agreement on the part of C to devote his whole time and attention to the manufacture of the watch chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privi- lege secured to the defendant of purchasing the whole quantity which it might be praclinabla for C to make : and it was proved that the machine used by C, with the knowledge and consent of the defendant, in the manufacture, was the same with that invented by the plain- tiff, and that all the watch chains thus made by C were delivered to the defendant according to the contract. Held, that if the contract was real and not colourable, and if the defendant had no other connexion with C than that which grew out of the contract, it did not amount to a breach of the plaintiff's patent-right. Such a contract, connected with evidence from which the jury might legally infer, either that the machine which was to be employed in the manufacture of the patented article was owned wholly or in part by the defendant, or that it was hired to the defendant for six months, under colour of a sale of the articles to be manufactured with it, and with intent to invade the plaintiff's patent-right, would amount to a breach of his right. Effect of contracts to purchase patented articles from a manufacturer who infringes the patent-right. ERROR to the circuit court of Maryland. This cause was argued by Mr. Webster and Mr. Sergeant, for the plaintiff; and by the Attorney-General, for the defendant. Mr. Justice Washington delivered the opinion of the court. This was a suit commenced by the plaintiff, Keplinger, in the fourth circuit for the district of Maryland, against the defendant, for the viola- tion of the plaintiff's patent-right, secured to him according to law, in a certain new and useful improvement, to wit, a machine for making watch chains, &c. The third count in the declaration, upon which alone this cause has been argued, is in the usual form, charging the defendant with having unlawfully used the said improvement, without the consent of the plaintiff first had and obtained in writing. The defendant pleaded the general issue, and gave notice to the plaintiff that he should deny that the exclusive right of using the improvement mentioned in the declaration, was vested in the plaintiff, or that he was *the original and first inventor of the said improvement, and that y^-. qj. he should give evidence to establish those facts. L At the trial, the plaintiff read in evidence the letters patent duly granted, bearing date the 4th of May, 1820, and proved, that he was 117 136 SUPREME COURT. [Keplinger c. De Young.] the true and original inventor of the machine specified in the potent, and that the defendant, together with John Hatch and John G. Ivirk- ner, did use the said machine in the making of watch chains from steel, from the 4th of May till some time in the month of December, 1820. The defendant, in order to prove that any concern or connection which he had with the said Hatch, and Kirkner, in the making of watch ' chains, by means of the said machine, was merely as a purchaser of watch chains from them under the following contract, produced and gave the same in evidence. The agreement referred to, bearing date the 3d of May, 1820, is between M. De Young, and J. Hatch and J. Kirkner, and witnesses, " that the said Hatch and Kirkner do hereby engage and obligate themselves to manufacture and deliver to M. De Young, or at his store in said city, not less than three gross, but as many as five gross, of wire watch chains, agreeably to a sample to be deposited with T. Barley, (if practicable to manufacture so many,) in each week, from the date hereof, for the term of six months, one-half of which number to be with turned slides, and the other half wire slides ; the whole number to be four strands, if the said Die Young so choose ; but he is to have the privilege of directing the description to be furnished, that is to say, what number of four, five, six, or eight strands ; the prices of which to be as follows : four strands, two dollars per dozen ; six strands, two dollars sixty-six cents and two-thirds per dozen, and eight strands at the rate of three dollars thirty-three cents per dozen ; said Hatch and Kirkner to devote their whole time and attention tO' said manufactory, and^ neither to sell, barter, nor dispose of, in any manner, or way, or means whatever, of any goods of the de- scription, hereinbefore described, or which may, in any manner or way whatsoever, interfere with, the exclusive privilege herein before granted, but will faithfully manufacture for said De Young, and none other, as far as five gross of chains per week, if practicable, and not less than three gross per week, at the prices herein bqfore stipulated, and payable as follows : one-half in cash at' the end of every week, for the total number delivered within thfr week, and the other half in said De Young's promissory note, payabli& at sixty days from the date thereof. And the said De Young, on his part, doth hereby promise to receive from the said Hatch and' Kirkner, such quantity of watch chains ansvrering the description of the satinple, as it may be in their power to ^1 qw-i *manufacture, not exceeding five gross per week, reserving to -■ himself the privilege of directing what proportion thereof shall be four, six, or eight strands, and pay for the same weekly in the fol- lowing manner, viz., the one-half amount of week's delivery in cash, the other half in a note at sixty days, the same to be settled for weekly, in manner aforesaid, if required." The defendant also gave evidence to prove that all the connection he ever had with the said Hatch and Kirkner, relative to watch chains made by them with the said machine, or otherwise, was merely as a purchaser of such chains from them, under and in pursuance of the said contract. The plaintiff then proved, that, at the time of making the said con- tract, the defendant was fully apprized of the existence of the machinp described and sj^ 118 FEBRUARY TERM, 1825. 137 [Keplinger v. De Young.] vention by the plaintiff, and of the intention of the plaintiff to obtain the said patent ; and that the said contract was made with a view to the employment of the said Hatch and Kirkner, in the manufacture of watch chains, of a machine precisely similar to that invented by the plaintiff, after the plaintiff should have obtained his patent; and that a machine precisely similar to that invented by the plaintiff was employed by the said Hatch and Kirkner in the manufacture of watch chains by them under the said contract, and with the knowledge and consent of the defendant during the whole period aforesaid, he and they having received notice, on the 5th of May, 1820, of the plaintiff's patent ; and that the watch chains so manufactured by Hatch and Kirkner, during the whole of the said, period, were delivered by them to the defendant, and by him received, under and in conformity with the said contract. Upon this evidence, the court, at the request of the defendant's coun- sel, instructed the jury, that the plaintiff was not entitled to a verdict on the first and second counts in his declaration, because the acts which they charge, if true, constitute no offence against the plaintiff's patent. And that, if the jury should be of opinion, on the evidence, that the plaintiff is the sole and original inventor of the whole machine ; and that the defendant had no other connection with Hatch and Kirkner, with regard to these chains, than that which arose from his said con- tract with them, under which he procured the chains to be made by Hatch and Kirkner, and sold them when so made ; and that the said contract is a real contract ; then these acts constituted no breach of the plaintiff's patent-right, on the part of De Young, and that the verdict must be for the defendant ; and that this legal aspect would not be changed, although the defendant may, on any occasion, have supplied, at the cost of Hatch *and Kirkner, the wire from which the r^-. qq chains so manufactured were made. '• To this instruction the plaintiff's counsel took a bill of exceptions, and a verdict and judgment having been rendered for the defendant, the cause is brought into this court by a writ of error. The only question which is presented by the bill of exceptions to the consideration of this court is, whether the court below erred in the in- struction given to the jury; and this must depend upon the correct construction of the third section of the act of congress, of the 17th of April, 1800, ch. 179, which enacts* " that where any patent shall be granted, pursuant to the act of the 21st of February, 1793, ch. 156, and any person, without the consent of the patentee, his executors, &c., first obtained in writing, shall make, devise, use, or sell, the thing whereof the exclusive right is secured to the said patentee by such patent, such person so offending shall forfeit and pay to the said patentee, a sum equal to three times the actual damage sustained by such patentee," «fec. The 'contract, taken in connection with the whole of the evidence stated in the bill of exceptions, if the same were believed by the jury, formed most certainly a strong case against the defendant, sufficient to have warranted the jury in inferring; either that the machine which was to be emplpyed in the manufacture of watch chains was owned in whole or in part by the defendant, or that it was hired to the defendant *br six months, under colour of a sale of the articles which might be manufactured with it, and with intent to invade the plaintiff's patent- riorht. Whether the contract, taken in connection with the whole of, 119 138 SUPREME COURT. [Keplinger ». De Young.] the evidence, does or does not amount to a hiring by the defendant of the machine, or the use of it for six months, is a point which ia not to be considered as being decided either way by the court. The bill of exceptions does not call for an opinion upon it. But the contract, taken by itself, amounted to no more than an agree- ment by the defendant to purchase, at a fixed price, all the watch chains, not exceeding five gross a week, which Hatch and Kirkner might be able to manufacture in the course of six months, with any machine they might choose to employ ; and an agreement on the part ( of Hatch and Kirkner, to devote their whole time and attention to the manufacture of the chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privilege secured to the defendant, of purchasing the whole quantity which it might be practicable for them to make. If this contract Was real, and not colourable, which is the obvious meaning of the instruction, and the defendant had no other connection with H. and K. in regard to these chains than what grew out of it, it *T^Q1 *^'^'ild' in the opinion of the court, be an extravagant construc- -■ tion of the patent law, to pronounce that it amounted to a breach of the plaintiflT's patent-right, by fixing upon the defendant the charge of having used the plaintiff's machine. Such a construction would be highly inconvenient and unjust to the rest of the community, since it might subject any man who might innocently contract with a manu- facturer to purchase all the articles which he might be able to make within a limited period, to the heavy penalty inflicted by the act, although he might have been ignorant of the plaintiff's patent, or that a violation of it would be the necessary consequence of the contract. It might possibly extend farther, and affect contracts express or implied, though of a more limited character, but equally innocent ; as to which, however, it is not the intention of the court to express any opinion, as this case does not call for it.' This cause was argued by the plaintiff's counsel as if the opinion of the court below had been given upon the whole of the evidence. But this was not the case. No instruction was asked for but by the defend- ant's counsel, and that was confined to a single part of the case, the connection between the defendant and H. and K., in regard to the watch chains which the latter bound themselves, by their contract, to manufacture and deliver to the former. If the jury had been of opinion, upon the whole of the evidence, that the contract was not a real one, or that that instrument did not constitute the sole connection between those parties, or that the transaction was merely colourable, with a view to evade the law, the jury were not precluded by the instruction from considering the plaintiff's patent-right as violated, and finding a verdict accordingly. Had the plaintiff's counsel thought proper to call upon the court for an opinion and instruction to the jury, upon any points arising out of the whole, or any part of the evidence, it would have been their dutv to give an opinion upon such points, leaving the conclusion of fact from the evidence to be drawn hj the jury. But this course not having been pursued, this court can take no notice of the evidence, although spread upon the record, except so far as it is connected with the single point upon which the opinion, which is excepted to, was given. As to the 120 FEBRUARY TERM, 1825. 139 [De Wolf V. Johnson,] residue of that opinion, that " the legal aspect of the case would not be changed, although the defendant might, on any occasion, have sup- plied, at the cost of H. and K., the wire from which the chains so manu- factured were made," it is quite as free from objection as the preceding part of it, since it stands upon precisely the same principle. Judgment affirmed, with costs. ♦De Wolf t). J. Johnson, R. M. Johnson, W. T. Barry, and *I40 J. Prentiss. 10 Wheaton's Reports, 367. In a contract for the loan of money, the law of the place where the contract is made is to govern ; and it is immaterial that the loan was to be secured by a mortgage on lands in another state. In such a case, the statutes of usury of the state where the contract was made, and not those of the state where it is secured by mortgage, are to govern it, unless there be some other circumstance to show that the parties had in view the laws of the latter state. [See note at the end of the case.] Although a contract be usurious in its inception, a subsequent agreement to free it from the taint of usury, will render it valid.. The purchaser of an equity of redemption cannot set up usury as a defence to a bill brought by the mortgagee for a foreclosure, especially if the mortgagor has himself waived the defence. Under a usury law which does not avoid the securities, but only forbids the taking a greater interest than six per centum per annum, a court of equity will not refuse its aid to recover the principal, A certificated bankrupt or insolvent, against whom no relief can be had, is not a necessary party to a suit in equity ; but if he be made a defendant, he cannot be examined as a wit- ness in the cause, until an order has been obtained upon motion for that purpose. APPEAL from the circuit court of Kentucky. This was a bill filed by the appellant, De Wolf, in the court below, on the 4th of September, 1818, for a foreclosure of a mortgage given by Prentiss, one of the respondents, on the 7th of July, 1817, to secure the repayment of the sum of sixty-two thousand dollars. The bill alleged, that the mdrtgagor had conveyed his equity of redemption to W. T. Barry, by a deed of trust dated the 16th of March, 1818, describ- ing the lands as " all those tracts or parcels of land described and con- tained in a deed of mortgage from the said J. Prentiss to the said J. De Wolf, dated the 7th of July, 1817," "it being the intention and meaning hereof,_ that after the satisfaction of the debts set forth in said deeds, the remainder of the property described in said deeds," " shall be hereby conveyed." According to the provisions of the deed, Barry exposed the premises for sale at public auction, on the 27th of May, 1818, "sub- ject to the encumbrances of any previous mortgage or deed of trust, particularly a mortgage deed to J. De Wolf, from J. Prentiss, dated the 7th of July, 1817," " recorded in the clerk's office of the Fayette county court, and to which all persons wishing to purchase are referred for more particular information." At this sale the property was pur- VoL. VI.— 16 L 121 141 SUPREME COURT. [Pq. Wulf V. Juhnson.] *I41T chased *by J. Johnson and R. M. Johnson> Prentiss filed, no J answer to the bill,, and it was taken pro conjfesso against bim. J. Johngon. answered, claiming as a bonae fidei purchaser fcr a valuable con3^ideration, and getting up the defence of usury in, the contract be- tween Prentiss afid the appellant, De Wolf, and also denying notice of the mortgage except by vague report, which, report was accompanied with the suggestion, that the mortgage was void, as being affected with usury. Barry also answered, admitting the conveyance to himself by Prentiss, in trust to sell, which sale he had effected publicly, and in good faith, before the bill- filed ; and in pursuance of the sale had con- veyed to the defendants, J. and R. M. Johnson ; and alleged that he was ignorant of the claim of the plaintiff, De Wolf, except so far as that claim was recognised, in tije deed of trust ;, and also set up the defenqe of us)Liry between' tiie mortgage and mortgaged The other defendant, R. M. Johnson, answered, recognising and adopting the answer of J. Johnson, and denying for himself all knowledge of the mortgage at the date of the conveyance to Barry. He also averred that he was a cre- ditor of Prentiss, to the aoiount of yearly five hundred, thousand dollars^ for VKhich.he had.no otheE security than, the assignmeftttoi Barry, through which he derived title to the mortgaged premises. The cause went to hearing on the pleadings and proofs, and Prentiss was admitted as a witness on the part, of the other (lefendantg, subject to legal exceptions ; but it did not appear by the transcript of the recordt, vuhether the decree of the court below was grounded upon his testimony. It ap- peared by the other evidence in the cause, that the transaction originated in, a, loan made by De Wolf to Prentiss, in the state of Rhode Island, ire the year 1815, the repayment of which was secured by a mortgage upon, the lands in Kentucky, which contract was afterwards waived by the parties, and a new contract entered into by them in the state of Kentucky, in the year 1817. The principal question of fact was, whether either, or both of those contracts, was void under the usury laws of either of those states, which question is fully considered in the opinion of this court. On the part of the appellants it was contended : 1. That the original contract of 1815, if usurious, was; not void according to the laws by which it ought to be governed; the laws of Rhode Island- not avoiding the contract, or the securities given for it, but only forfeiting one-third of the principal* and all the interest of the loan, as a penalty to be recovered by information or action, of debt^ % That the contract of 1817 was free from the taint of usury. 3- That; if either or both of these contracts were usurious, the de- »1421 f6° *J' ^"*^ ^' ^' Johnson, could not take advantage of J the usury, not only because they were not parties to the contract, but because, by the very terms of the deed of trust to Barry, under which they claim, they took the estate in controversy subject; to the prior conveyance of the appellant. On the part, of the respondents it was insisted : I. That the loan of 1815 was usurious and void. 3. That the transaction of 1817 was a device to secure the repay- ment of money advanced on an usurious agreement. 3. That money advanced on an usurious agreement cannot be securedi. and the payment enforced in a court of equity, at the instance of the 123 FEBRUARY TERM, 1825. 142 [De Wolf V. Johnson.] lender, by force of any after agreement of the lender to relinquish the usury, and of the borrower to repay the money lent. Mr. Jones and Mr. P. Hall, argued the case for the appellant, and cited : Ord on Usury, 33, (d), 194, 103, 76, 37. Blanchard i;. Russel, 13 Mass. Rep. 4. Hicks «. Brown, 12 Johns. Rep. 142. 5 Day's Rep. 322. 2 Washington's Rep. 282. Van Reimsdyke v. Kane, 1 Gallis. Rep. 371. 4 Dayfs Rep. 96. 2 Johns. Ch. Cos. 365. De War v. Span, 3 Term Rep. 425. Champant v. Lord Ranelagh, I Equ. Cos. Mr. 289. 3 Dull. Rep. 370, note. Cowp. Rep. 341. 8 Wheat. Rep. 355. 5 Cond. Rep. 457. Scoville v. Ganfield, 14 Johns. Rep. 339. 4 Burr. Rep. 225 L. 2 Mod. Rep. 307. Thompson v. Ketchum, 8 Johns. Rep. 189. 3 Esp. M p. 163. Swartwout v. Payne, 19 Johns. Rep. 294. Comyn on Usury, 183—185, 110, 187, 72; 3 Day's Rep. 350. 10 Mass. Rep. 121. Barnes v. Headley, 2 Taunt. Rep. 184. Chadburn v. Watts, 10 Mass, Rep. 123.^ 3 Term Rep. 531. 8 East's Rep. 307. 2 Dall. Rep. 92. 1 Esp, JVC P. 40, 176. 3 Burr. Rep. 1516. 1 Burr. Rep. 452. 9 Johns. Rep. 120. 3 Term Rep. 554. 7 JoAn*. Rep. 476. 19 JoAns. iJep. 508^ 10 .Mass. jRejB. 284. 7 JMboT. IJep. 118. 8 .Mass. i?ep. 101,258. 10 JMass. Rep. 121. 4 BMrr. 2253. 1 Camp. M P; 149. 3 WUs. 390. 9 ./Ifoss. Rep. 49. 1 Bos. ant? Pull. 149. PAt7/. Ewrf. 57, 61, 62. 5 JoAns. CA.. Cas. 95. 14 Ease's i?ep. 565. 10 Johns. Rep. 95. 20 Johns. Rep. 142. 5 Esp. JV. P. 155. 6 Wheat. Rep. 109. 5 Cone?. R^p. 23. Green «. Kemp, 13 Mass. Rep. 515. 16 Mass. Rep. 96. 5 JoAms. Ch. Rep. 122, 555. 10 Johns. Rep. 202. 1 5 Johns. Rep. 555; 1 TaMMt 414v 9 ./Wass. ^ep. 48. Bac. Mr. tit. flsary, T. Bull. N. P. 224. 1 Johns. Ch. Rep. 158. Mr. Webster and Mr. Bibb, for the defendant, cited : Huher. Preelect. torn. 2, I. 1, tit. 3. Robinson v. Bland, 2 Burr. 1077. 3 Pa«. 374, note. iFfer^r. Co. Z/i«. 79, b. 44, note. 3Atk.72'7. 1 Fern. *428. r^,.q Cowp. 114. 3 Bos. and Pull. 154. Cro. £Ziz. 27. 1 Sch. and L ^*^ Ze/: 115, 182, 119, note. Chitty on Bills, 94, 95. Bac. Ahr. Usury, (C), 2. 1 Johns. Cas. 536. Cowp. 796, 770. Cro. Jac. 440. 2 Dom^Z. 735. Cowjo. 793. 1 Mk. 351. Bac. Abr. Usury, (C), 8, 9, 13. 2 Fcs> 155. 7 Johns. Rep. 196. 3 Terw Rep. 531. 1 Bro, CA. Rep. 149, 151. £sp. ./v. p. 11. .4»!6?. 371. 1 Johns. Ch. Rep. 537. 13 JoAms. Rep. 40. 2 JoAms. CA. Rep. 192. 4 TbjMnf. 810. 1 Bos. and Pull. 144. 4 Ca»i/>. JV. P. 157. 8 7oAns. Rep. 253. 5 JoAms. CA. iJep. 122. Mr. Justice Jghwsoit delivered the opinion of the court. This cause has been discussed very much at large, and with a de- gree of talent, candour, and research, very satisfactory to the court. In proceeding to consider it, however, we think it advisable to deviate from the order in which the points were examined at the bar, and to pursue them as they arise in the progress of the suit. In the year 1818, the complainant filed his bill in the circuit court of the United States for Kentucky, to obtain a foreclosure of a mort- gage given' to secure the sum of sixsty't-wo thousand dollars, and bear- ing date July 7, 1817. The debt secured was payable by instalments only one of which was due when the bill Was filed-, but in the progress of the cause all the instalments falling due, they were all, by consent) admitted into the pleadings, as if inttodueed by supplemental bill. The bill first sets outtlie mortgage and- the bfeaehj and then proceeds 133 143 SUPREME, COURT. [De Wolf V. Johnson.] to allege, that Prentiss, the mortgagor, had conveyed his equity of redemption to W. J. Barry, who had sold to James Johnson and R. M. Johnson, the two latter of whom were then in possession. ' Prentiss files no answer, and in due course the bill, as to him, is ordered to be taken pro confesso. Jamfes Johnson files an answer, claiming as bona fide purchaser for a valuable consideration, and setting up the defence of usury in the contract between Prentiss and the complainant, and putting the complainant generally upon his proof. He also denies notice of De Wolf's mortgage, otherwise than by vague report, which report, he alleges, was accompanied with the suggestion that the mortgage to De Wolf was affected with usury, and void. At a subsequent day, Barry also answers, admitting the conveyance to himself by Prentiss, in trust to sell, which sale, he alleges, he had effected publicly, and in good faith, before the bill was filed ; and in pursuance of such sale, had conveyed to the Johnsons. He further alleges, that at the time of the execution of the deed of trust to him, " he was ignorant of the complainant's claim, except so far as that #144.1 *claim is recognised in the deed of trust," and also sets up the -■ usury between the mortgagor and mortgagee, in avoidance of the mortgage. R. M. Johnson also files an answer, in which he recognises and adopts the answer of James Johnson, and further denies, altogether, knowledge of the mortgage to De Wolf at the date of the transfer to Barry. He then sets out, that he is a creditor of Prentiss to the amount of near five hundred thousand dollars, for which he has no other security than the assignment to Barry, through which he derives title to the mortgaged premises. Upon this state of the pleadings, with a few formal and immaterial additions, the parties went into their proofs. And as the complainant exhibited his mortgage in legal form, and with all the evidence of au- thenticity required by law, it followed that the defendants were put upon their proof to maintain the grounds on which they sought to avoid it. It was not contended, that in the immediate contract on which the bill was founded, there was any usurious taint belonging to that trans- action itself. The ground taken was usury in a transaction anterior by two years, out of which the mortgage in question drew its origin, and from which the usurious taint was supposed to be transmitted either directly or incidentally. The case proposed to be established in proof was, that in the year 1815 there was a negotiation for a loan between these parties, the scene of which was in Bristol, Rhode Island. That the sum to be loaned was eighty-three thousand dollars, but which sum in fact was reduced below eighty thousand dollars, by means which they contended were resorted to for the purpose of disguising (he usurious interest, to be retained by way of premium, or bonus, or im- position. That the interest actually stipulated for was twelve per cent., of which six per cent, was reserved in a bond executed at the time for one hundred and eleven thousand dollars, comprising compound in- terest, there being no annual interest reserved. The other six per cent, was secured under the aspect of a rent payable out of lands in Ken tucky, for which Prentiss executed absolute conveyances, and De Wolf stipulated to reconvey on the payment of the amount for which Prentiss 134 FEBRUARY TERM, 1825. 144 [De Wolf V. Johnson.] gave his bond, and a sum annually, by way of rent, equal to six per cent, upon the eighty-three thousand dollars, that is, the sum of four thousand nine hundred and eighty dollars. This rent, it seems, was paid the first year, together with an addi- tional sum of four hundred and ninety-eight dollars, added as interest and damages. And a bill for the sum of four thousand nine hundred and eighty dollars was drawn the second year by De Wolf upon Prentiss, payable *in Philadelphia, but this was returned under protest, and sub- r^iir sequently taken up by a bill for five thousand one hundred and ■- fifty-four dollars, endorsed by J. T. Meder, jun. The evasion of the statute against usury, supposed to have been prac- tised upon Prentiss in making up the sum of eighty-three thousand dol- lars, had relation to three items. The first a sum of about thirty-two thousand dollars, admitted into the computation as the price set upon fifteen shares of the Lexington Manufacturing Establishment, trans- ferred by De Wolf to Prentiss. The second, treasury notes to the amount of twenty thousand two hundred and eleven dollars and ninety- four cents, received at par ; and the third, thirty thousand eight hun- dred and two dollars and seventy-three cents, bills drawn upon Phila- delphia, also taken at par. Upon these three items there was an esti- mated loss sustained of about three thousand four hundred dollars. The contract of 1815 was unquestionably entered into in the state of Rhode Island, and was there reduced to writing ; but had a view to Kentucky for its consummation. As it entered into the contract that Prentiss should secure De Wolf by a conveyance of Kentucky land to a large amount, two agents were employed, and intrusted by De Wolf with the securities to be passed to Prentiss, and a power to draw upon him for the money to be paid in Philadelphia ; which Prentiss was to have the benefit of, upon complying with the articles of his contract, purporting an absolute conveya,nce of the land. The place where the contract of repayment of the principal on the part of Prentiss was to be fulfilled, appears no farther than this, that the bond is given to pay generally, without regard to place, and the money to be paid by way of rent appears, by the subsequent acts of the parties respecting the bills drawn for the rent, to have been payable in Philadelphia. The contract of 1817, in which this mortgage originated, was exe- cuted in Kentucky ; and had its inception in an intimation from Pren- tiss of a design to avail himself of the plea of usury. Upon this, De Wolf repaired to Kentucky, and there instituted a new negotiation with Prentiss personally, having for its object to clear the contract from all usurious incidents, and to take security for the sum loaned, at the legal interest of Kentucky, which, as well as that of Rhode Island, is six per cent. Accordingly, all the instruments of writing which apper- tained to the old contract were surrendered mutually, and a new mort- gage given to secure the balance now sued for ; the original sum having been reduced by large actual payments to the sum for which this mort- gage was given, and which includes the same premises conveyed under the prior contract. The defence set up rests upon the assumption that the new contract *was not purged of the usury, or, rather, that the whole con- r^i^e tract of 1815 was void, and could, therefore, form no basis of L 1,2 125 146 SUPREME COURT. [De Wolf V. Johnson.] consideration for the contract of J817. Or if not wholly void, it com- prised several items of an usurious character, which ought to be in- cluded in the new contract. And here two preliminary questions arose, the first of which was, whether the Jex loci of the contract of 1815 was Rhode Island or Kentucky ? By the usury laws of the latter, the con- tract, and all the securities given for it, are void, both for principal and interest. By the laws of the former, although it is prohibited to take more than six per cent, interest, and a penalty imposed for the offence, the act does not render the contract void, certainly not for jhe principal sum. By the laws of Kentucky, it is supposed, that the principal debt being abolished, there could be no consideration to sustain the new con- tract ; by the laws of Rhode Island, that the reverse would be the effect, unless, as was contended in argument, that the simple prohibition of such a contract, which js express in the Rhode Island act, would affect it with the character of an illegal contract, and, as such, one which a court of equity would not lend its aid to carry into effept. With regard to the locality of the contract of 1815, we have no doubt, that it must be gwerned by the law of Rhode Island- The proof is positive that it was entered into there, and there is nothing that can raise a question but the circumstance of jts imsking a part of the con- tract, that it should be secured by conveyances of Kentucky land. But the point is established, that the mere taking of foreign security does not alter the locality of the contract with regard to the legal interest. Taking foreign security does not necessarily draw after it the conse- quence that the contract is to be fulfilled where the security is taken.' The legal fulfilment of a contract of loan, on the part of the borrower, is repayment of the money, and the security given is but the means of securing what he has contracted for, which, in the eye of the law, is to pay where he borrows, unless another place of payment be expressly designated by the contract. No tender would have been effectual to discharge the mortgagee, unless made in Rhode Island.' On a bill to redeem, a court of equity would not have listened to the idea of calling the mortgagee to Kentucky in order to receive a tender. In the effijrt to sustain his defence under the laws of Rhode Island, the defendants have introduced into the cause the examination of their co-defendant, Prentiss, taken at the instance of themselves, and received in the court below, subject to legal exceptions. We are not informed whether the court below actually recognised it as competent evidence, I ,„^ since the grounds on which that court dismissed the bill are *not -I spread upon the record. It is enough that it does not appear to be rejected ; we are now called upon to pass an opinion upon it. The only grounds upon which an argument has been made in support of the admissibility of Prentiss's deposition, have been, that the com- plainant avers him to be insolvent, which fact the testimony in the cause goes also far to establish ; and that his deposition was taken before he was in reality made a party by the service of a subpcena. But on no principle can his evidence be adjudged competent. It is true, that cases occur in which certificated bankrupts are struck out of a record and made witnesses ; but if this was a case in which a motion to strike out could have been sustained, the motion should have been made, and the party's name expunged from the record. On no principle could he be made a witness while he was himself a partv 126 * FEBRUARY TERM, 1825. 147 I^De Wolf V. Johnson.] He may have had little or no interest in the event of the suit, except as to the costs ; but still, while a party to the record, he could not be ^Bxamined. We know of no exception to this rule, whatever be the court in which the question occurs, except it be in the administration of certain branches of the admiralty jurisdiction. From the views that ■W€ take of the case, however, we do not find it necessary to inquire whether there is sufficient evidence in the cause, after rejecting the evidence of Prentiss, to sustain the fact« on which the defence rests. If, with the aid of that testimony, the defence cannot be sustained, a fortiori, it cannot be without it. And here it may be proper to premise, as was very correctly remarked in the argument, that there has not been, in fact, any contrariety of opinion expressed by the counsel on the law of usury. Usury is a mortal taint wherever it exists, and no subterfuge shall be permitted to conceal it from the eye of the law ■ this is the substance of all the cases, and they only vary as they follow the detours throu^ which they have had to pursue the money-lender. But one difficulty presents itself here of no ordinary kind. It is not very easy to discover how the taint of Rhode Island usury can infuse itself into the veins of a Kentucky contract. The defence would not admit of a moment's reflection if it rested on the direct effects which laws against usury have upon contracts. Whatever sums may have been derived through the usurious contract of 1815, to the contract of 1817, they would noit affect the latter with usury, unless introduced in violation or evasion of the laws of Kentucky, for the two contracts are governed by laws that have no connection. But it ma:kes very little diflTerence in this case, since, if the contract of 1817 is, either in whole or in part, uncoiiscionable, this court would not lend its aid to execute it as far as it was uiifconscionable, and the argument goes to show that it partakes of that character, because, admitting that the law of Rhode Island did n6t render the contract of 1815 null and void *for the r^i^g principal sum loaned, yet the sum exhibited in that contract, as ^ principal, and so transmitted to the latter contract, contained sundry items, which, it is contended, were passed upon Prentiss at a great Joss, and under circumstances calculated to serve as a disguise to usury. And first, as to the shares in the Lexington Manufacturing Com- pany; these were fifteeft in number, and appear to have been taken by Prentiss on account of the eighty-three thousand dollars, about two thousand dollars a share. The whole of which, there is reason to think, was sunk in his hands, in the general wreck of the adventure. It cannot be denied, that this is a suspicious item ; it does not, in general, comport with a negotiation for a loan of money, that any thing should enter into the views of the parties but money, or those substitutes which, from their approximation to money, circulate with corresponding, if not equal facility. Still, however, like every other case, it is open to explanation, and the question always is, whether it was or was not a subterfuge to evade the laws against usury. And here it is to be observed, that it is not every sale which, in a negotia- tion for a loan, will taint the transaction with usury; for it may com- port perfectly with the general views of the borfOWer to rhake such a purchase, or to take the article even in preference to money. I would illustrate this by the case of a merchant who proposes to borrow a 127 148 SUPREME COURT. [De Wolf V. Johnson.] capital to adventure in trade, and who, instead of money, receives an assortment, at a fair price, adapted to that trade. There would be no ground for attributing to such a transaction a design to evade the statute. But in what does the present case vary from that ? Prentiss had embarked in a manufactory, of the prospects of which he enter- tained the highest hopes. He either believed, or endeavoured to per- suade others, that it would yield fifty per cent. The De Wolfs had embarked, on his representations, thirty thousand dollars in the enter- prise. . No experiments had been yet made from which any doubts could be excited, nor is there any proof that the stock was falling. Under these circumstances, he proposes to take back the shares if he could procure money to complete the establishment. The connection between the actual loan, and taking the shares as part of the loan, was easy and natural, and the interest of twelve per cent., with other inci- dental advantages held out for the loan, may well be estimated as the actual inducement, without supposing that De Wolf was conscious of passing this item upon Prentiss at an inflated price. Prentiss had himself put a value upon these shares but a short time before, in the sale to De Wolf, at nearly the same pricp, and De Wolf was either his dupe, or the shares were resold at theif value. Prentiss's continuing confidence in their value is positively deduced from the efforts he made *T4Q1 ^"^ complete, at every hazard and sacrifice, *the establishtnent to J which those shares appertained. He still thought it a profitable investment, and so had De Wolf thought it, or he would not have made so large an investment without an atom of security but what was to be found in his anticipations from the establishment itself. It is conclusive, that this was no heterogeneous, disconnected article, forced into the nego- tiation, but intimately connected with, if not the primary object of, the loan; that the price, however inflated, was that which both parties had, by previous unequivocal acts, set upon it ; and if it could be said to have a market value, there is no evidence that it was above its market value ; and, finally, that it was an actual transfer of interest with a view to acquire the article, and not merely to throw it upon the market in order to raise money. It was a real transaction, and not a subterfuge. On the subject of the treasury notes and bills drawn on Philadelphia, we can perceive nothing usurious, or even unconscionable, in this part of the transaction. As to treasury notes, they were thrown into circu- lation as money, and it is an historical fact, that they were worth all they purported to be worth, notwithstanding the casual depreciation which the embarrassments of the country, and the scarcity of gold and silver, may have produced ; and as to the bills on Philadelphia, we are induced to believe that payment in that fdrm was a benefit conferred on the borrower. From the well-known course of trade between Kentucky and Philadelphia, it would scarcely have been possible, at that time, or perhaps at any time, to have suited them better in making a payment of money intended to be transported to, and used in Kentucky. With regard to the bills, it is in evidence, that there was no loss incurred; and. on the treasury notes, not as much as the transportation of gold and silver would have cost, calculating all the incidents to actual transportation. But what if these payments had been made in Rhode Island bank bills ? Would there have been a pretext of lurking usury 128 FEBRUARY TERM, 1825. 149 [De Wolf I). Johnson.] in such a payment 1 Yet who can doubt that the payment would have been less convenient than that actually made ? In all probability, with reference to gold and silver, and the exchange or depreciation in Ken- tucky, the paper of Rhode Island would have been equally, if not more disadvantageous. It is not on such vague and equivocal grounds, that courts infer the presence of usury. But there is one consideration with reference to this part of the cause, which is conclusive. There is no evidence in the record that these payments were in any way forced upon Prentiss. On the contrary, for any thing that appears in the evidence, it may have been, in both instances, the payment of his own choice. In a letter not long before the loan, he actually quotes bills on Phila- delphia, from four to six per cent, advance. Nothing of that chaffering ♦appears in the cause, which distinguishes all the cases in which r#icn attempts are made to evade usury laws, at the moment of extort- '- ing extravagant profits on the advance of money. With regard to the two payments made by way of rent, we have to remark, that there never was any payment of interest for two years on the eighty-three thousand dollars, besides what was made in that form ; and had the payments been direct and absolute, and confined to the sum of four thousand eight hundred and ninety dollars eachj there could no question have been raised respecting those payments. They would have amounted only to the legal compensation for the use of the money. With regard to the second year, it is obvious, that as yet nothing has been actually paid ; but as it may be said to be secured or acknowledged by another bill, we will consider both sums as paid. And then the only exceptionable parts of the payment will be the sum of four hundred and ninety-eight dollars, added to that actually paid for the first year,- and one hundred and seventy-four dollars thirty cents, added to the bill drawn for the rent of .the second year. As to the cash, it is a simple > allowance of interest upon a bill drawn for the four thousand nine hundred and eighty dollars, upon its being returned and taken up by another, and cannot be excepted to. And as to the first, we perceive in the transaction about the second payment, a sufficient explanation of the origin of the addition made in that instance. As Prentiss acquiesced in having a bill drawn for the second year, payable in Philadelphia, we may reasonably conclude, that Ihe agreement was to pay the rent or interest, whichever it may be called, by drawing such a bill. If, then, such a bill was drawn, and returned for non-payment, it may afford an easy solution of the question upon what principle that addition was made. But why, for so inconsiderable a sum, should we perplex ourselves with difficulties in so large a transaction ? It could, at most, in com- mon with all the items we have been examining, have furnished only a ground for a deduction, certainly for not dismissing the bill. Nor should we have proceeded to examine these items in detail, were it not that the court below will have to make a decree upon which it will be necessary to allow or disallow these items. Nor, when it is considered under what circumstances this second contract was entered into, would' this court, upon slight grounds, be induced to open it. The parties had previously entered into a contract avowedly usurious with relation to the interest reserved. The defendant intimates his intention to avail himself of the defence of usury, and the parties si* Vol. VI.— 17 139 150 SUPREME COURT. [De Wolf V. Johnson.] down together for the sole and express purpose of purging it of all *15n *"^'i'''0"s taint, and to arrange a new contract respecting the -■ same loan which should be legally obligatory. Is it, then, probable, that any deduction would have been withheld, which, by being retained, could affect the new contract with usury, or with any of the incidents of usury ? Would De Wolf have trusted himself again in the hands of Prentiss, by mixing up any thing with this contract on which a legal exception could be sustained? We think not. But one of the counsel for the appellees has placed the objection to the complainant's right to relief on a more general ground than the receipt of usury, or the avoidance of the contract under statute. He insists, that it is enough for this court to refuse its aid, that the con- tract of 1815 was prohibited by law, although not avoided by law. That a court of equity will not lend its aid to an illegal or uncon- scionable bargain is true. But the argument carries this principle rather too far as applied to this case. The law of Rhode Island cer- tainly forbids the contract of loan for a greater interest than six per cent., and so far no court would lend its- aid to recover such interest. But the law goes no farther ; it does not forbid the contract of loan, nor preclude the recovery of the principal under any circumstances. The sanctions of that law are the loss of the interest, and a penalty to the amount of the whole interest, and one-third of the principal if sued for within a year. On what principle could this court add another to the penalties declared by the law itself? But the case does not rest here. The subsequent legal contract of 1817 rescued the case from the frowns of the law. Courts of justice will not shut the door in the face of the penitent ; and hence it has been decided, in a case very analogous to the present, that although a contract be in its inception usurious) a subsequent agreement to free it from the illegal incident shall make it good. 1 Camp, Rep. 165, note. 2 Taunt. Rep. 184. According to the views, then, which we have exhibited of the case, the principal sum of the loan of 1815 was a subsisting debt at the date of the contract of 1817, and unaffected by any of the deductions con- tended for in the several items which we have considered. There was, then, a good consideration for the contract of 1817, and it is legally valid to the amount which it purports on the face of it. But, if it were otherwise, there are two views of this subject, upon which the court below ought to have sustained the bill. It is very clear, that the Kentucky contract must be considered as a , -„•, new and substantive contract. It is governed by a distinct code -I of *laws from the Rhode Island contract, and cannot be affected by the taint of usury which might have been transmitted to it under some circumstances, had it taken place in Rhode Island. It was, then, equivalent to a payment and reloan ; and no one can doubt, that money paid on an usurious contract, is not recoverable back beyond the amount of the usury paid. Again, it is perfectly established, that the plea of usury, at least as far as to landed! security, is personal and peculiar; and however a third person, having an interest in the land, may be affected incidentally by an usurious coat^gxjt, fe% <;aflJftoi take advantage of the usury. Some 130 # FEBRUARY TERM, 1825. 152 [Oe Wolf «. Johnson.] exceptions may exist to this rule under bankrupt systems, but they are statutory and peculiar. Here, then, the case presents a third person, the assignee of an equity of redemption, setting up a defence, which, in one aspect, Prentiss him- self cannot set up ; and which, in another aspect, he has not set up ; but, on this contrary, under the state of the pleadings, must be supposed to have refused to set up, or have abandoned. These views are inde- dependent of the effect of notice, or of the peculiar circumstances of the notice in this case. It is true, the Johnsons deny the notice prior to the deed of trust. But previous notice is immaterial, since the notice with which the law affects them, is that which the deed to Barry, under which they claim, communicates to him as assignee. In the actual case, the notice is pecu- liarly strong and pointed, since the only description of the lands in question, in the deed to Barry, is contained in a reference for description to the mortgage to De Wolf, and the purpose is explicitly declared to give priority to that mortgage. Technically and morally, therefore, they required no more than what should remain after satisfying De Wolf. But had they purchased from Prentiss, in the most absolute and general manner, and altogether without notice actual or construct- ive, they still could have acquired no more than the equity of redemp- tion, and that would not have transferred to them the right of availing themselves of the plea of usury. We have examined the cases quoted to this point, and are satisfied with their application and correctness. It would, indeed, be astonishing, were it otherwise, for the contrary rule would hold out no relief to the borrower ; it would be only trans- ferring his money from the pocket of the lender to the pocket of the holder of the equity of redemption. Upon the whole, we are of opinion, that the decree must be reversed, and the cause sent back to have a decree of foreclosure entered, and carried into effect, according to the exigencies of the case. ' ^'"'■y- r*i f^^ Cases decided on the law of usury. See notes, 1 Cond. Rep. 488. L '■"'' The following decisions on the law of usury are also referred to : C. and Co. discounted their notes with the F. and M. Bank of Georgetown, at thirty days ; and, in lieu of money, they stipulated to take the post-notes of the bank, payable at a future day, without interest, while the post-notes were at a discount of one and a half per cent, in the market at the time of the transaction. Such a contract is usurious. The endorsement of a promissory note of a stranger to the transaction, which was passed to the bank as a collateral security for the usurious loan, although the note itself is not tainted with the usury, yet the endorsement is void, and passes no property to the bank, in the note ; and the subsequent pay- ment of the original note, for which the security was given, and the repayment of the sum received as usury, will not give legality to the transaction. Gaither v. The Farmers and Mechanics' Bank of Georgetown, 1 Peters, 43, 44. If a note be free from usury in its origin, no subsequent usurious transactions respecting it, can affect it with the taint of usury, although an endorser of the note, whose property in it was acquired through an usurious transaction, may not be able to maintain a suit upon it. Ibid. The act of assembly of Maryland declares << all bonds, contracts, and assurances whatever, taken on an usurious contract, to be utterly void." And the endorsement of a promissory note, for an usurious consideration, is a contract within the statute, and was void. Ibid. The branch bank of the United States, at Lexington, Kentucky, discounted a promissory note, reserving interest thereon, at the rate of six per centum per annum ; it being agreed that the owner of the note should receive the proceeds of the discount in notes of the Bank of Ken- tacky, at their nominal value, although the same were at the time of no greater current value than fifty-four per cent, of the said nominal value. Held, that the contract was usurious, and 131 153 SUPREME COURT. [De Wolf V. Johnson.] void ; and that the bank could not recover of any of the parties to the discounted note. The Bank of the United States v. Owens, 2 Peters, 327. A fraud upon a statute is a violatioii of the statute. Ibid. A profit made, or loss imposed on the necessities of the borrower, whatever form, shape, or disguise it may assume, where the treaty is for a loan; and the capital is to be returned at all events, has always been adjudged to be so much profit taken upon a loan, and to be a violation of those laws which limit the lender to a specific rate of interest. According to this principle, the lender in this case has taken forty-six per cent, for three years, or at the rate of about fifteen per cent, per annum above the prescribed interest. This is contrary to the provisions of the charter of the Bank of the United States, and against law. Ibid. Reserving interest as discount, is the same as taking the same ; since it cannot be permitted by law to stipulate for the receipt or reservation of that which it is not permitted to receive. In those instances in which courts are called upon to inflict penalties upon the lender, whether in a civil or criminal form of action, it is necessarily otherwise; for there the actual receipt is generally necessary to consummate the offence. But where the restrictive policy of a law alone is in contemplation, we hold it to be an universal rule, that it is unlawful to contract to do that which it is unlawful to do. Ibid. The charter of the Bank nf the United States forbids the taking of a greater rate of interest than six per centum, but it does not declare a contract on which a greater interest has been taken or reserved, to be void. Such a contract is void upon general principles. Courts of justice are instituted to carry into effect the laws of a country, and they cannot become auxi- liary to the violation of those laws. There can be no civil right where there can be no legal remedy ; and there can be no legal remedy for that which is itself illegal. Ibid. The taking of interest in advance upon the discount of a note in the usual course of ^> E^-| ^business by a banker, is not usury. This has been long settled, and is not now open J for controversy. Thornton v. The Bank of Washington, 3 Peters, 40. The taking of interest for sixty-four days on a note is not usury, if the note given for sixty days, according to the custom and usage in the banks at Washington, was not due and payable until the sixty-fourth day. In the Case of Renner v. The Bank of Columbia, 9 Wheat. .581, 5 Cond. Rep. G91, it was expressly held, that under that custom the note was not due and payable before the sixty-fourth day, for until that time the maker could not be in default. Ibid. Where it was the practice of the party who had a sixty-day note discounted at the Bank of Washington, to renew the note by the discount of another note on the sixty-third day, the maker not being in fact bound to pay the note according to the custom prevailing in the district of Columbia ; such a transaction on the part of the banker is not usurious, although on each note the discount for sixty-four days was deducted. Each note is considered as a distinct and substantive transaction. If no more than legal interest is taken upon the time the new note has to run, the actual application of the proceeds of the new note to the payment of the former note before it becomes due, does not of itself make the transaction usurious. Something more must occur. There must be a contract between the bank and the party at the time of such discount, that the party shall not have the use and benefit of the proceeds until the farmer note becomes due, or that the bank shall have the use and benefit of them in the mean time. Ibid. S, being seised in fee of four brick tenements and lots of ground in the city of Alexandria, in consideration of five thousand dollars, granted to M. an annuity or yearly rent-charge of five hundred dollars, to be issuing out of and charged upon the houses and ground, and covenanted that the same should be paid to M. his heirs and assigns for ever thereafter, with the right to distrain in case of non-payment of the same. In the deed granting the rent-charge, M. the grantee covenanted, that at any time after five years, on the payment of five thousand dollars with all arrears of rent, he, M., would release the said rent-charge, and the same should cease. 8. covenanted to keep the buildings in repair, and that he would have them fully insured against fire, and assign the policy of insurance for the protection of M., the money from the insurance to be applied to the rebuilding or repairing the houses, if destroyed or injured by fire. Afterwards, 8., by deed of bargain and sale, conveyed to L., the plaintiff in error, the houses and lots of ground subject to the payment of the rent to M., who since the same con- veyance has been seised of the same. The rent being unpaid, M. levied a distress for the same, and L. brought replevin ; and the defence to the claim for rent set up to the avowry was, that the transaction was usurious, and the deed granting the rent-charge was, by the laws of Vir- ginia, absolutely void. The statute of Virginia of 1793 provides, that no person shall take, directly or indirectly, more than' six per cent, per annum on loans of money or for forbearance for one year ; and it declares that all bonds and other instruments for a greater amount of interest shall be utterly void. Lhyd v. Scott, 4 Peters, 205. The requisites to form an usurious transaction are, 1. A loan either express or implied. i. An understanding that the money lent shall or may be returned. 3. That a greater rate of 132 FEBRUARY TERM 1825. 154 [Db W If ». Johnson.] interest than is allowed by the statute shall be paid. The intent with which the act is done is an important ingredient to constitute this offence. Ibid. An ignorance of the law will not protect a party from the penalties of usury, where it is committed ; but where there was no intention to evade the law, and the facts which amount to usury, whether they appear upon the face of the contract or by other proof, can be shown to have been the result of mistake or accident, no penalty attaches. Ibid. The act of usury has long since lost that deep moral stain which was formerly attached to it; and is now generally considered only as an illegal or immoral act, because it is prohibited by law. Ibid. If the court were in this' case limited by the pleas to the words of the contract, and it ^purported to be a purchase of an annuily, and no evidence were adduced giving a p^, .^ different character to the transaction ; the argument, that, though the annuity may L '''' iroduce a higher rate of interest than six per cent, upon the consideration paid for it, as it was a purchase, it was legal, would be unanswerable. An annuity may be purchased like a tract of land or other property ; and the inequality of pricf will not of itself make the contract usurious. If the inadequacy of consideration be great in any purchase, it may lead to suspi- cion; and connected with other circumstances, may induce a court of chancery to relieve against the contract. Ibid, In this case, five thousand dollars were paid for a ground-rent of five hundred dollars per annum. This circumstance, although ten per cent, be received on the money paid, does not make the contract unlawful. If it were a bona fide purchase of an annuity, there is an end of the question ; and the condition which gives the option to the vendor to repurchase the rent, by paying the five thousand dollars after the lapse of five years, would not invalidate the contract. The right to repurchase, as also the inadequacy of price, would be circumstances for the consi- deration of a jury. Ibid. The purchase of an annuity, or any other device used to cover an usurious transaction, will be unavailing. If the contract be infected with usury, it cannot be enforced. Ibid. If a party agree to pay a specific sum exceeding the lawful interest, provided he do not pay the principal by a day certain, it is not usury. By a punctual payment of the principal, he may avoid the payment of the sum stated, which is considered as a penalty. Where a loan is made, to be returned at a fixed day, with more than the legal rate of interest, depending on a casualty which hazards both principal and interest, the contract is not usurious ; but where the interest only is hazarded, it is usury. Ibid. AH the material facts to constitute usury are found in the second plea. It states a corrupt agreement to loan the money at a higher rate of interest than the law allows. That the money was advanced and the contract executed according to such agreement That on the return of the principal with the full payment of the rent, ailer the lapse of five years, the ani^uity was to be released. The amount agreed to be paid above the legal interest for the forbearance is not expressly averred, but the facts are so stated in the plea as to show the amount with certainty, ^ive hundred dollars, under cover of the annuity, were to be paid annually for the forbearance of the five thousand dollars, making an annual interest of ten per cent. These facts, uncon- tradicted as they are, amount to usury. It is evident, from this statement of the case, that the annuity was created as a means for paying the interest until the principal should be returned, and as a disguise for the transaction. Such is the legitimate inference which arises from the facts stated in the plea. Ibid. The principle seems to be settled that usurious securities are not only void, as between the original parties, but the illegality of their inception affects them even in the hands of third pei^ sons, who are entire strangers to the transactions. A stranger must <_' take heed to his assurance at his peril," and cannot insist on his ignorance of the corrupt contract in support of his claim to recover upon a security which orignated in usury. Ibid. In the case of De Wolf v. Johnson, 10 Wheat. 367, 6 Cond. Rep. 140, the first mortgage being executed in Rhode Island in 1815, was not usurious by the laws of that state; and the second mortgage executed in Kentucky in 1817, being a new contract, was not tainted with usury. The question, therefore, whether the purchaser of an equity of redemption can show usury in the mortgage to defeat foreclosure, was not involved in that case. Ihid. ' The law of Virginia having declared that a contract infected by usury is void ; and, by the deed from 8. to M., a tight to enter on the premises and distrain for the rent being claimed under a deed, which, upon the admissions in the pleadings, is usurious; and the premises upon which the distress was made being held by L. under a conveyance from 8. : L. may set up the defence of usury in the deed, against the summary remedy asserted by M. under the deed. Ibid. *A promissory note, payable at a future day, given for a bona fide business trans- _ , _„ action, and which note was not made for the purpose of raising money in the market, L ^ " M 133 156 SUPREME COURT. [Brent v. Davis.] was sold by the drawee and endorser for a sum so much less on its face as exhibited a dtsconnt beyond the legal rale of interest, no stipulation having been made against the liability of the endorser, is not per se an usurious contract between the endorser and endorsee, and an action can be maintained upon the note against the endorser who sold the same by the purchaser. Nichols V. Fearsmi, 7 Peters, 103. The courts of New York have adjudicated that whenever the note or bill in its inception was a real transaction, so that the payee or promisee might at maturity maintain a suit upon it, a transfer by endorsement, though beyond the legal rate of interest, shall be regarded as a sale of the note or bill, and a valid and legal transaction. But not so where the paper, in its origin. Was only a nominal negotiation. Ibid, There are two cardinal rules in the doctrine of usury which we think must be regarded as the common place to which all reasoning and adjudication upon the subject should be referred ; the first is, that to constitute usury there must be a loan in contemplation by the parties; and the second, that a contract which in its inception is unaffected by usury, can never be invalid- ated by any subsequent usurious transaction. Ibid. Parties to proceedings in chancery. See notes, 1 Cond. Rep. 507. Peters's Digest, " Chancery." Brent and others v. Davis. 10 Wheaton'i Reporti, 395. The scheme of a lottery contained a stationary prize for the first drawn number on each of twelve days, during which the drawing was to continue, and the first drawn number on the tenth day was to be entitled to thirty thousand dollars, payable in part by three hundred tickets, from Nos. 501 to 800 inclusive. No. 623, one of the three hundred tickets to be given in part payment of the said prize, was drawn first on that day, and decided to be enti- tled to the prize of thirty thousand dollars. After the drawing for the day was concluded, the managers reversed this decision, and awarded the prize to No. 4760, which was drawn next to No. 623, and had drawn a prize of twenty-five dollars, which they decreed to No. 623. [See note at the end of the case.] In drawing the same lattery, it was discovered on the last day that the wheel of blanks and prizes contained one blank less than ought to have been put into it ; and, to remedy this mistake, an additional blank was thrown in. In an action brought by the managers against a person who had purchased the whole lottery, for the purchase money, it was held that these irregularities did not vitiate the drawing of the lottery, the conduct of the managers having been bona fide, and the affirmance of their acts not furnishing any inducement to the repetition of the same mistake, nor any motive for misconduct of any description. Qusre, Whether the ticket No. 623, or No. 4760, was entitled to the prize of thirty thousand dollars 1 ^, c-r, *ERROR to the circuit court for the district of Columbia. J This cause was argued by Mr. Key, for the plaintiffs ; and by Mr. Swann and Mr. Jones, for the; defendant. Mr. Chief Justice Maeshall delivered the opinion of the court. The defendant was the purchaser of the first class of a lottery to be drawn in the city of Washington, conformably to a scheme agreed on between the plaintiffs, who had been appointed managers, and himself; and the declaration is on the penalty of the bond given for the sum of ten thousand dollars, conditioned for the performance of articles entered into between them, one of which was, that he should pay the said sum 134 FEBRUARY TERM, 1825. 157 [Brent v. Davis.] of ten thousand dollars to the plaintiffs within sixty days after the lottery should be completed. The defendant prayed oyer of the bond, and of the condition ; after which the following entry is made : " non damnificatus pleaded, and issue, with leave to give the special matter in evidence on both sides." A jury was empannelled, who found a special verdict, which states at large the by-law of the corporation authorizing the lottery, the ap- pointment of the managers, their sale of the first class to Davis, the scheme of the lottery, and the agreement entered into by him with them. The verdict then states, that the managers, and the said Davis, pro» ceeded to draw the said lottery, in the course of which, certain irregili- larities took place, which are detailed at large ; and the whole progress of the lottery to its conclusion is stated. The scheme contains a stationary prize for the first drawn number on each of twelve days, during which the drawing was to continue ; which were not put into the numerical wheel. The first drawn number on the tenth day was to be entitled to thirty thousand dollars, payable in part by three hundred tickets, from numbers 501 to 800 inclusive. No. 623, one of the three hundred tickets to be given in part payment of the said prize, was drawn first on that day, which was immediately proclaimed by the managers, and the prize awarded to it, by making the usual entry in a book kept for that purpose. After the drawing for that day was concluded, the managers recon- sidered their judgment, awarding the prize of thirty thousand dollars to No. 623, and reversed it. They then awarded the prize to No. 4760, which was drawn next to 623, and had drawn a prize of twenty-five dollars, which prize they decreed to No. 624 ; and the original entries made in the book for the registration of prizes, were transposed so as to conform to this last determination. On the last day, it was discovered, that the wheel of blanks and *prizes, contained one blank less than ought to have been put p^, pq into it ; and to remedy this mistake, the managers and the said •- Davis agreed to throw in an additional blank. The verdict appears to have been intended not only for this cause, but for another suit also, which was brought for the benefit of the pro- prietors of a ticket, which had drawn a prize of ten thousand dollars, by the corporation of Washington against one of the managers, on a bond given for the performance of his duty. It concludes with the following findings : " if, upon the whole matter, the law be for the plaintiffs, so as to entitle the plaintiffs to demand and have of the de- fendant in this action, the sum of ten thousand dollars, in and by the agreement recited in the condition of the bond, given by the said Gideon Davis to the said managers aforesaid, sixty days after the drawing of the said lottery is completed, then we find for the plaintiffs the debt in the declaration mentioned, and one cent damages, to be discharged by the payment of ten thousand dollars. " And if the proprietors of the said prize tickets, or the said pro- prietors of the said ticket No. 1037, be entitled to demand and have the amount of the several prizes drawn against their respective tickets in the course of the drawings as aforesaid, after making the deduction of fifteen per cent, according to the said scheme, and if the proprietors 135 158 SUPREME COURT. [Brent v. Davis.] of the said ticket No. 1037, be entitled to demand and receive payment of the said prize of ten thousand dollars, with such deduction as afore- said, against the defendant in this action, then we find for the plaintiffs the farther sum of eight thousand five hundred dollars, to the use of the said purchasers and proprietors of the said ticket No. 1037, in equal shares and proportions aforesaid. And il^ upon the whole matter, the law be for the defendant, we find for the defendant. The judgment of the court was in favour of the defendant ; and that judgment is now before this court on a writ of error. If, through the confusion which is introduced into this record by the extreme irregularity of the proceedings, the court can perceive that the plaintiffs have a real cause of action which may be barred by this judgment, the justice of the case requires that it should be reversed, although the great fault in pleading has been committed by the plain- tiffs in failing to assign any breach of the condition of the bond on which the suit was instituted. The suit is supposed to be brought for the recovery of the ten thou- sand dollars, which the defendant engaged to pay sixty days after the lottery should be drawn. This claim is resisted, on the plea that the lottery, in point of law, is not yet drawn; that the irregularities stated in the verdict have vitiated the whole transaction; that the lottery ♦TSQl *''™'^®t ^ redrawn ; and that no right of action, can accrue to -• the plaintiffs until sixty days after such redrawing shall be con- cluded. The right of the plaintiffs, then, to maintain this action, depends on the legality of the drawing as found in the special verdict. The defendant insists that two errors have been committed in drawing the lottery, which vitiate the whole transaction. The first is the pro- ceeding respecting the first drawn ticket on the tenth day ; and the last the circumstances in relation to the deficient ticket in the wheel of blanks and prizes. If the ticket which was first drawn in fact, ought to be considered as entitled to the prize, as was first decided by the managers, then no irregularity whatever took place in their proceedings with regard to this ticket^ and this objection is clearly at an end. If the last decision of the managers was right, still there was no irregularity in the draw- ing, unless the ticket No. 623 ought to have been restored to the wheel, and have taken its chance for a blank or a prize. We are not satisfied that the managers ought to have taken this course. The ticket was properly put in the wheel, and was consequently liable to be drawn out at any time. The scheme did not say that if any of those tickets which were to be paid in part discharge of the stationary prizes, should itself draw the prize, it should be returned to the wheel and redrawn ; and great objections would, without doubt, have been made to such a pro- ceeding. It would have diminished the chance of every remaining ticket for the undrawn prizes, and would have constituted a much more valid objection than can be made to what was actually done. Had No. 623 been replaced in the wheel, and been fortunate enough again to draw a large prize, it would have been very difficult to sustain its title to that prize. This first objection to the conduct of the managers, is not, we think, supported. More difficulty is presented by the last. The mistake in the number 136 FEBRUARY TERM, 1825. 159 [Brent v. Davis.] of tickets placed in the wheel is undoubtedly an irregularity ; but the effect it ought to have on the lottery is not so obvious. The ticket not put in the wheel was a blank; and consequently the omission did not diminish the chances of the adventurers. The last drawn number would find no corresponding ticket in the other wheel ; but the chance of each to be the last drawn was precisely the same as the chance of _ each would have been to draw the blank, which ought to have been in the wheel. Had the lottery been completed without attempting to correct the error by throwing in another blank, the owner of the last drawn ticket would have been in the same situation as if the blank had remained in the wheel ; and if he could be considered as having any just cause of complaint, it would seem more reasonable that the pro- prietors *of the lottery should restore him the price of his ticket, r#i o^ than that the whole proceeding should be declared a nullity. '■ The general quiet is more consulted by considering his particular contract as void for want of consideration, than by annulling all the rights acquired in the course of the drawing. We do not think the case materially varied by placing the blank in the wheel in the course of the last day. The tickets previously drawn could not be affected by this act. The rights to prizes which had been previously vested could not be devested by this act. It could affect nothing which had been done, and was of importance to those tickets only which remained in the wheel. It did not in the slightest degree vary their chance. There were the same number of prizes and the same number of blanks, with this only difference — had the blank not been put in the wheel, the last ticket would have drawn nothing ; whereas, by putting it in the wheel, it did not necessarily fall to the lot of the last ticket. But the aggregate of chances remained precisely the same. It appears to have been one of those unimportant incidents, which, having been found to be accidental, ought not to have so essen- tial and so disquieting an el9fect as unsettling all that ha:d been done would have. The establishment of the lottery thus .drawn can be attended with no pernicious consequence. The transaction was, throughout, perfectly fair ; .and if the managers have committed an error, it was uninten- tional, and unimportant. The affirmance of their acts can furnish no inducement to the repetition of the same mistakes, nor any motive for misconduct of any description. But let it be settled, that the absence of a blank at the conclusion of a lottery shall vitiate the whole trans- action, and it is not difficult to perceive how frequently motives may exist for producing that state of things. However questionable may be the policy of tolerating lotteries, there can be no question respecting the policy of removing, as far as possible, from those who are concerned in them, all temptation to fraud. The case of Madison and others v. Vaughan, decided in the court of appeals of Virginia, is supposed by the defendants to be an authority for declaring that this lottery ought to be redrawn. In that case, a number corresponding to the number of one of the tickets was not put into the wheel, and two blanks more than the proper number were put into it. Chancellor Wythe considered the lottery as well drawn ; bul his decree was reversed in the court of appeals. Supposing the decree of reversal to be correct, there is some difference between the cases. Vol. VI.— 18 m2 137 160 SUPREME COURT. [Brent v. Davis.] One ticket not being in the wheel, the proprietor of it did not partake of the chance to which every adventurer had an equal right ; and *1611 *'^^^'"^ being two more blanks in the wheel than were allowed by -I the scheme, the chances of every ticket were diminished. If, when all the numbers for the tickets which had been put in the wheel were drawn, two blanks had remained undrawn, it would be difficult to show that any injury had been done to a ticket-holder by the two additional blanks ; but if one or two prizes had remained undrawn, it would be obvious that some ticket had drawn a blank which ought to have drawn a prize, and this circumstance would have afforded stronger reason for the decree that the whole proceeding must be considered as a nullity. The case of Neilson v. Mott, 2 Binn. 301, was a suit brought by the proprietor of a lottery against a purchaser of five hundred lottery tickets, on a note given by him for the purchase-money, which was payable one day after the conclusion of the drawing of the lottery. In the wheel containing the numbers of the tickets, the numbers of thirty-nine tick- ets were omitted, and in the same wheel, there were duplicates of thirty- nine numbers. The proprietors had satisfied all the holders of the du- plicate numbers except four or five, and had oflFered to indemnify all by public advertisement. A day or two before the last day's drawing, the managers opened the wheel, and discovered that there was one number omitted and another put in twice, which they altered. The defendant resisted the payment of his note, because the lottery was not legally drawn, the whole being vitiated by this mistake. Judgment was given for the plaintiff, on the ground that the drawing was not vitiated by these irregularities. I'wo of the judges were of opinion, that as the defendant had sustained no injury by them, he could not avail himself of them ; and the third (the court consisting of three) thought he had waived his right by not returning his tickets, and by receiving the prizes he had drawn. The case of Schinotti v. Bumstead and others, 6 D. and E. 646, was an action brought by the holder of a ticket claiming a prize allotted in the scheme to that which should be last drawn in the lottery. The number of one ticket had not been put into the wheels and the demand made by the owner of the ticket which was last actually drawn, was resisted, on the ground that the ticket not yet drawn, for which a correspondent blank remained in the wheel, must be the last. Lord Kenyon said, that as the plaintiff's ticket was the last drawn, he was entitled to the prize ; the only competitor with him was the owner of a ticket which never was drawn, and that person has no claim to it whatever. So far as respects the omission to put the number of one ticket into the wheel, this case bears an exact resemblance to Madison et al. v. ♦T fi91 *V3,ughan, and is perhaps stronger than the case under considera- J tion. The omission of a ticket is, at least, as irregular and as important as the omission of a blank, and yet, in Schinotti v. Bumstead and others, no suggestion was made against the validity of the drawing. Upon these authorities, and upon the reason and substantial justice of the case, this court is of opinion, that the lottery in the special ver- dict mentioned, has been legally drawn, and that the defendant became liable to the plaintiffs, sixty days after it was concluded, for Ihe sum of 138 FEBRUARY TERM. 1825. 162 [Brent v. Davis.] ten thousand dollars. The judgment, therefore, in favour of the de- fendant, must be reversed. But the pleadings are too defective to sus- tain a judgment on this verdict for the plaintiffe. The verdict, there- fore, and the pleadings, up to the declaration, Inust be set aside, and the cause remanded to the circuit court, that farther proceedings may be had therein according to law. Judgment reversed, and a venire facias de novo awarded. Lotteries. The following cases relative to lotteries have been decided. The act of congress of 4th May, 1813, further to amend the charter of the city of Wash- ington, which provides (sec. six) that the corporation of the city shall be impowered for cer- tain purposes, and under certain restrictions, to authorize the drawing of lotteries, does not extend to authorize the corporation to force the sale of the tickets in such lottery, in states where such sale may be prohibited by the state laws. Cohens v. Virginia, 6 Wheat. Rep. 264 ; 5 Cond. Rep. 90. When the manager of a lottery drawn in pursuance of an ordinance of the corporation of Washington, gave a bond to the corporation, conditioned " truly and impartially to execute the duly vested in him by the ordinance ;" held, that the person entitled to a prize ticket had no right to bring a suit for the prize against the manager, upon his bond, in the name of the cor- poration, without its consent. Corporation of Washington v.Young, 10 Wheat. 406 ; 6 Cond. Rep. 163. Under the act of New Jersey of 13th February, 1796, all lotteries are prohibited, and all con- veyances of real and personal estate, made in pursuance of lotteries, are invalid, whether such lotteries are erected and drawn within or without the state of New Jersey, and whether the parties are or are not citizens of that state ; and a conveyance made by one citizen of Penn- sylvania to another, of land in New Jersey, in pursuance of a lottery, made and drawn in Pennsylvania, conveys no interest in such lands. Lessee of Ridgway v. Dratferwood, Wash. Rep.; Same v.Ogden, Ibid. Where various tracts of land were divided into lots of different value, and certificates issued and sold, stating that the holder was the bona fide purchaser of such one of the lots as might- be determined to belong' to him, at the general distribution of the property thereafter to take place : the price paid for each certificate was uniform, greatly exceeding the value of many of the smaller lots, bat inferior to that of the larger ones, they varying in value from one dollar to twenty thousand dollars, but there were no actual blanks : the distribution was made by means of two wheels, one of which contained the numbers of the certificates, the other the number of the lots : held, this was a lottery transaction. Ibid. Where the party has executed a conveyance in pursuance of such lottery transaction, and subsequently, but on the same day, in conjunction with his wife, executed a general ♦release of all their right and interest in the property: such release is not per se r||,|y>o invalid on the ground of an illegal consideration, without in some way connecting it L '■"" with the lottery. Ibid. The plaintiff was the owner of a half ticket in " the fifth class of the national lottery," author- ized by the charter granted by congress to the city of Washington. The number of the origi- nal ticket was 5591, which drew a prize of twenty-five thousand dollars. The whole ticket was in the hands of Gillespie, to whom all the tickets in the lottery had been sold by the cor- poration of Washington : and his agent issued the half ticket, which was signed by him as the agent of Gillespie, the purchaser of all the tickets in the lottery. After the drawing of the prize, and before notice of the interest of any other person in the ticket No. 5591, Gillespie returned the original ticket to the managers, or commissioners of the lottery, and the agents of the corporation ; and received back from the corporation an equivalent to the value of the prize drawn by it, in securities deposited by him with the corporation fof the payment of the prizes in the lottery : held, that the corporation of Washington were not liable for. the payment of half of the prize drawn by ticket No. 559 1 , to the owner of the half ticket. Shankland v. The Corporation of Washington, 5 Peters, 390. The purchaser of tickets in a lottery authorized by an act of congress, has a right to sell any portion of such ticket, less than the whole. The party to whom the sale has been made would thus become the joint owner of the ticket thus divided, but not a joint owner by virtue of a contract with the corporation of Washington, but with the purchaser in his own right, and on his own account. The corporation promise to pay the whole prize to the possessor of the whole ticket, liut there is no promise on the face of the whole ticket that the corporation will pay any 139 163 SUPREME COURT. [Corporation of Washington v. Young.] portion of a prize to any subliolder of a share : and it is not in the power of a party, merely by his own acts, to split up a contract into fragments, and to make the promissor hable to every holder of a fragment for a share. Uid. The Corporation of Washington, for the use of M'Cue and others, v. Moses Young. 10 Wheaton's ReparU, 406. Where the manager of a lottery, drawn in pursuance of an ordinance of the corporation of the city of Washington, gave a bond to the corporation, conditioned " truly and impartially to execute the duty and authority vested in him by the ordinance ;" held, that the person en- titled to a prize ticket had no right to bring a suit for the prize against the manager, upon his bond, in the name of the corporation, without their consent. *1fi41 THIS cause was argued by the same counsel with the preceding, *Mr. Chief Justice Mabshali. delivered the opinion of the court. The defendant was the manager of a lottery, drawn in pursuance of an ordinance of the corporation of Washington, and gave his bond to the corporation in the penalty often thousand dollars, conditioned " truly and impartially to execute the duty and authority vested in him by the ordinance." The declaration was on the penalty of the bond ; after oyer of which, and of the condition, the defendant pleaded non damnificatus, upon which there was issue, with leave to give the special matter in evidence on both sides. A jury was empannelled, who found the special verdict stated in the preceding case of Brent et al. v. Davis, with this additional circumstance, which, having no connection with that case, was not stated in it. The ticket number one thousand and thirty-seven, drew a prize of ten thou- sand dollars. It had been sold in quarter shares to several persons, but had remained in possession of the said Gideon Davis, who gave to each purchaser a certificate specifying the interest he held in the ticket. After the drawing was completed, but before the institution of this suit, Gideon Davis delivered the said ticket, number one thousand and thirty- seven, to the managers, towards securing and paying off the moneys stipulated to be paid by him under his contract for the purchase of the lottery. This suit is instituted for the benefit of the purchasers of the ticket number one thousand and tliirty-seven, without the consent of the cor- poration. The. judgment of the court was in favour of the defendant, and the plaintiffs have sued out a writ of error to bring the cause into this court. The first inquiry is, into the rightof the proprietors of the ticket num- ber one thousand and thirty-seven, to sue in the name of the corporation without its consent. Their counsel insists, that the bond was taken for the benefit of the fortunate adventurers in the lottery, and that each 140 FEBRUARY TERM, 1825. 164 [Corporation ' of Washington v. Young.] has a right to use it. In support of this proposition, he has cited the case of M'Mechen v. The Mayor and City Council of Baltimore, decided in the court of appeals of Maryland in the year 1806. That was a writ of error to a judgment confessed in the general court, in an action brought by the corporation on a bond given by Thomas Yates and Ar- chibald Campbell, with their sureties, conditioned for the performance of their duty as auctioneers. The court determined, that the suit was to be considered as brought by authority of the corporation, although no warrant of attorney was shown ; and that the confession was an admission of the right to recover the penalty of the bond ; whether in their own right, or for the use of another, was immaterial. *The opinion was also expressed, as stated by the reporters in p^, „- a note, that every person whose money was withheld by the ■- auctioneers, had a right to apply to the city council to direct a suit to be instituted on the bond ; and the corporation could not, consistently with their duty under the ordinance, refuse such application, and might be enjoined by suit in chancery to allow the person to use their name to prosecute his claim. Had this been the direct judgment of the court, it could not have sustained the pretensions of the proprietors of this ticket to maintain this suit under the circumstances which attend it. They had undoubt- edly " a right to apply to the corporation to direct the suit, and the cor- poration could not, consistently with their duty, have refused such application," if the purpose of the bond was to secure the fortunate adventurers in the lottery, not to protect the corporation itself. But the propriety of bringing such suit was a subject on which the obligees had themselves a rignt to judge. If the proprietors of one prize ticket had an interest in this bond, the proprietors of every other prize ticket had the same interest ; and it could not be in the power of the first bold adventurer who should seize and sue upon it, to appropriate it to his own use, and to force the obligees to appear in court as plaintiifs against their own will. No person who is not the proprietor of an obligation, can have a legal right to put it in suit, unless such right be given by the legislature ; and no person can be authorized to use the name of another, without his assent given in fact, or by legal intendment. The declaration of the judge in the case cited from Harris and Johnson, that a court of chancery might enjoin the obligees to allow the injured per- son to use their names in that particular case, is evidence of the opinion, that he could not sue at his own will. We think, then, that this case is no authority for the power claimed by the proprietors of ticket number one thousand and thirty-seven ; and we think, upon general principles, they had no right to institute this suit without the consent of the corporation. But, we think also, that the corporation itself must be considered as the real plaintiff, and that its right to prosecute the suit cannot be affected by the allegation that it is brought for the benefit of others. It has been determined in this court, that the warrant of attorney need not be spread on the record, to enable counsel to appear for a cor- poration ; and if the dismission of the suit be not ordered, the consent of the corporation will be presumed after verdict. Osborn v. The Bank of the Unitea States, 5 Cond. Rep. 741. If, in its progress, the court shall perceive that it is brought without authority, the proper 141 165 SUPREME COURT. [Janney v. The Columbian Insaiance Company.] course would seem to be to dismiss it ; not to render judgment for the *1661 *<^6f^"<^3^nt, which might, where no special breach is assigned, J bar any other action. The proprietors of the ticket number one thousand and thirty-seven have shown no right to sue on this bond. Their remedy is certainly directly against Gideon Davis; and, in the event of his insolvency, it may be against the managers. But, if they have, without authority, put this bond in suit, the proper course is to turn them out of court, not to render gi judgment which may bar any future suit brought by the plaintiffs, whose names have been improperly used. The judgment of the circuit court, therefore, must be reversed ; but as the pleadings are so incomplete as not to show what judgment ought to be entered, the proceedings are set aside up to the declaration, and t,he cause remanded to the circuit court, to be farther proceeded in according to law. Judgment reversed accordingly. Janney v. The Columbian Insurance Company. 10 Wheat on^s Reports, 411. Under a policy containing the following clause: " it is declared and understood, that if the above-mentioned brig, after a regular survey, should be condemned for being unsound or rotten, the insurers shall not be bound to pay the sum hereby insured, nor any part thereof." A survey by the master and wardens of the port of New Orleans, which was obtained at the instance of the master, who was also a part owner, and was transmitted by him to the other part owner, and by the latter laid before the underwriters as proof of the loss, stated, that the wardens " ordered one streak of plank fore and aft to be taken out, about three feet below the bends on the starboard side ; and found the timber and bottom plank so much decayed, that we were unanimously of opinion her repairs would cost more than she would be worth afterwards, and that it would be for the interest of all concerned she should be con- demned as unworthy of repair on that ground. We did, therefore, condemn her as not sea- worthy, and as unworthy of repair ; and, therefore, according to the powers vested by law in the master and wardens of this port, we do hereby order and direct the aforesaid damaged brig to be sold at public auction for the account of the insurers thereof, or whomsoever the same may concern." It was held, that the survey was conclusive evidence, under the clause, to discharge the insurers from their liability for the loss. [See note at the end of the case.] Qusre, How far the state legislatures may authorize the condemnation of vessels as l„„ *unseaworthy, by tribunals or boards constituted under state authority, in the absence '^"'J of any general regulation made by congress, under its power of regulating commerce, or as a branch of the admiralty jurisdiction t However this may be, the above condemnation not being specially authorized by any law of the state of Louisiana, it would not have been considered as conclusive evidence within the clause, had not the condemnation been obtained by the master, as the agent of the owners, and afterwards adopted by them as proof of the facts stated therein. ERROR to the circuit court for the district of Columbia. This was an action brought in the court below by the plaintiff in error, Janney, against the defendants in error, the Columbian Insurance Company, on a policy of insurance on the brig Hunter, Grinnolds, lost 142 FEBRUARY TERM, 1825. 167 [Janney v. The Columbian Insurance Company.] or not lost, from Alexandria to Norfolk and New Orleans ; in which policy there was the following clause : " it is declared and understood, that if the above-mentioned brig, after a regular survey, should be condemned fSr being unsound or rotten, the insurers shall not be bound to pay the sum hereby insured, nor any part thereof." On the first trial of the cause, the jury, not agreeing on a verdict, was discharged ; and, on the second trial, a verdict was found for the defendants, under an instruction from the court to the following effect, as stated in the bill of exceptions : And the plaintiff offered to prove, by parol evidence, that at the time that the said brig Hunter sailed from the port of Alexandria upon her voyage aforesaid, and at the time she was surveyed and condemned at New Orleans as herein after mentioned, she was sound, and that the repairs of vessels, and materials of ship-building, at that place, were very high ; and that the prices there would have amounted to two or three times as much as the prices would have amounted to in the port of Alexandria ; and that the repairs of the said vessel, arising from the injuries which she had sustained in her voyage to New Orleans, would not have amounted to less, in that place, than two thousand dollars, independent of the detention of the vessel, and the other necessary expenses of the voyage. But the defendants produced, and read in evidence to the jury, a regular survey, called upon the state and con- dition of the vessel on her arrival at New Orleans, by the said captain Grinnolds, master and part owner; and by him transmitted to the plaintiff to be laid before the insurance oflSce as evidence of loss ; and actually laid before such office by the plaintiff accordingly ; and, at the former trial, read on the part of the plaintiff in evidence to the jury, in the words following : « Port Warden's Office, New Orleans, 13th January, 1819. We, the subscribers, the wardens of this port, having been thereto required by captain Grinnolds, did repair on board the brig Hunter, commanded *by him, and lately arrived from Norfolk, and, assisted by A. r^i^jo Seguin, carpenter, surveyed her condition. Found twenty-five ^ feet of quarter-rail, and seventy-five feet of waist-boards, and the boat's david, carried away ; the oakum of the break of the quarter-deck started, and also the strings and drifts ; the cambouse stove and its house carried away ; the vessel was reported to have leaked much at sea. All which, therefore, according, to the powers vested by law in the master and wardens of this port, we do hereby certify." Signed by the master and wardens. "A true copy of the records in this office. George Pollock, Warden and Secretary." " Port Warden's Office, New Orleans, 24th February, 1819. We, the subscribers, wardens of this port, having been thereunto required by captain Grinnolds, to inspect the condition of the brig Hunter, com- manded by said captain Grinnolds, from Norfolk, did repair to the ship- yards, and assisted by Andrew Seguin and Robert Fell, ship-carpenters, and for the greater satisfaction of said master, by captain Wayne of the ship Ariadne, and captain Williams of the brig Maryland, surveyed her condition. W"e ordered one streak of plank fore and aft to be taken out, about three feet below the bends on the starboard side, and found the timbers and bottom plank so much decayed, that we were unani- mously of opinion her repairs would cost more than she would be worth 143 168 SUPREME COURT. [Janney v. The Columbian Insurance Company.] afterwards ; and that it would be for the interest of all concerned, she should be condemned as unworthy of repair on that ground. We did, therefore, condemn her as not seaworthy, and as unworthy of repair; and therefore, according to the powers vested by law in the master and wardens of this port, we do hereby order and direct the aforesaid damaged brig to be sold at public auction, for account of the insurers thereof, or whomsoever the same may concern." Signed by the master and wardens. " Port Warden's Office, New Orleans, 22d March, 1819. We, the subscribers, wardens of this port, do hereby certify, to whom it may concern, that the goods mentioned in the annexed account of sales, were sold at public auction, by our order, in our presence, by Dutillet and Sagony, commissioned auctioneers, after having been advertised in due form of law ; and that the said account of sales is, in all respects, just and true. " In testimony whereof, we have countersigned the said account, and now grant this certificate as the law directs." Signed by the wardens. "A true copy of the records in this office. George Pollock, Warden and Secretary." Whereupon the defendants prayed the opinion of the court, and their instruction to the jury, that the said survey is conclusive evidence that *lfiQl **^® ®^'*^ vessel was condemned for being unsound or rotten ; and ■' that it is not competent for the plaintiff to produce evidence in- consistent with said survey, to prove that the said vessel was, in fact, sound at the time of such survey; and that, upon such evidence, the plaintiff is not entitled to recover under the policy given in evidence in this case; and the court so accordingly instructed the jury, and refused to suffer the said evidence to be given to the jury. A verdict and judgment thereon having been rendered for the defend- ants, the cause was brought by writ of error to this court ; and was ar- gued by Mr. Swann for the plaintiff, and by Mr. Jones for the defendants. Mr. Justice Johnson delivered the opinion of the court. This case varies somewhat in form, but nothing in principle, from the case of Dorr v. The Pacific Insurance Company, 7 Wheat. Rep. 582, 5 Cond. Rep. 360. The material point of distinction is this ; in that case the discharge of the underwriters was made to depend on a regular survey alone; the stipulation was, " that if the vessel, upon a regular survey, should be thereby declared unseaworthy by reason of her being unsound or rotten," the policy should be discharged. And hence, although a condemnation in the vice-admiralty court of the Ba- hamas was produced in evidence in that cause, the court makes no other use of it, than as the means of authenticating the survey upon which the decree was made. The terms of the present stipulation are these : " if the above-men- tioned brig, after a regular survey should be condemned for being un- sound or rotten," the insurers are to be discharged. From which it is obvious, that both a regular survey, and. a condemnation are in contem- plation of the parties. And the question is, whether the bill of excep- tions makes out the casus foederis. This gives rise to three questions : was the survey regular ? was the condemnation conformable to the contract 1 and does the one or the 144 FEBRUARY TERM, 1825. 169 l^janney v. The Columbian Insurance Company.] Other bring the case within the terms of the stipulation ? With regard to the survey, the case is a very clear one. The laws of Louisiana contain ample and judicious provisions on this subject. The master and wardens of the port of Orleans are vested with various powers, and required to keep an office and a book of record open to all the world ; they possess, in fact, some of the attributes of a municipal court- With regard to damaged vessels, and vessels deemed unfit to proceed to sea, they, or any two of them, with one or more skilful carpenters, are constituted surveyors ; and the laws enjoin, " that they shall, upon every such survey, certify under their hands, how the vessels so ♦surveyed appeared to them, and shall cause entries to be made r-^-. ^n in a book to be kept for that purpose in their office." A survey, L therefore, made by them, pursuant to this law, and at the call of the captain of this vessel, was emphatically a regular survey. The difficulty in the cause arises upon the next member of the clause under consideration, to wit, that which requires a condemnation. The certificate of the survey purports, that there was, in fact, a condemna- tion of the vessel ; but there is nothing in the laws of Louisiana which vests the power expressly in the master and wardens of the port to condemn a vessel as unfit for sea or unworthy of repair. As to damaged merchandise, the power is expressly given ; but as to ships, it appears to be exercised as incidental to the surveying power. In other parts of the world, it is very generally exercised as an incident to the admi- ralty power ; and the admiralty jurisdiction, under our system, can only be exercised under the laws of the United States. , These considerations are only thrown out to preclude the supposi- tion that the court has not had them in mind whilst considering this subject. We do not mean to intimate that the power is one which can- not be exercised under municipal regulations. On the contrary, there are many reasons for maintaining that it may be so exercised until con- gress may think proper to establish some general rule upon the subject, either as one appertaining to trade and commerce, or within the admi- ralty jurisdiction. If, therefore, there had been express provision on the subject in the laws of Louisiana, or it had been shown to be recog- nised as a; power known and habitually exercised in that port, as an incident to the surveying power, we should have felt no difficulty on this point. As it is, we must place our opinion on another ground, one, howevdl, which is also noticed in Dorr's case. It is this, that the con- demnation, such as it is, was obtained through the instrumentality of the master, who, as such, represented his employers, and who was, in fact, in this instance, also a part owner. In this condemnation he ac- quiesced, broke up the voyage, and sold the vessel ; and the certificates now before this court were transmitted to the underwriters, and actu- ally, in a former trial between the same parties, made evidence to prove the fact which they ascertain. It is then too late for the plaintifis to dispute the validity or verity* of the act of condemnation. They have recognised the jurisdiction of the tribunal they appealed to, to obtain the survey, as sufficient also to make the condemnation, and must be held to abide by it as such. All further and other investigation in a more competent tribunal, if there was such, was rendered impossible by their act. Vol. VI. — 19 N 145 171 SUPREME COURT. [Janne; v. The Columbian Insurance Company.] *17n *^' °"'y remains, then, to determine, whether the facts ascer- -' taiiied by the survey are such as bring the case within the terms of the stipulation. We are of opinion they are. It would be difficult to find a shade of difference in this respect, between the present case and that of Dorr. The terms of this certificate are, "we found the timbers and bottom plank so much decayed, that we are unanimously of opinion her repairs would cost more than she would be worth afterwards; and that it would be for the interest of all concerned she should be condemned as unworthy of repairs on that ground. We did therefore condemn her as not seaworthy, and as unworthy of repairs." Now it cannot be questioned that the ground of condemnation here stated does not stand single and unconnected with the estimated cost of repairs. But does this vary the case 1 We are of opinion it does not, since the condemna- tion of a vessel, on account of decay, can never, in its nature, stand single and unconnected with the expense of repairs. It is the common place to which the question of condemnation must always have refer- ence. It is hardly possible to conceive a case where a survey would be called in which a vessel might not be repaired or renovated, and still leave enough of the hull to maintain her identity. A state of hope- less and absolute decay, therefore, is never in the contemplation of the contract. And whether expressed or not, the consideration whether the value when repaired would exceed the expense, invariably enters into the decision of surveyors upon a question of seaworthiness. As, then, her being decayed, so as to be unworthy of repairs, is equivalent to, and in fact the technical meaning of, unseaworthiness, we are of opinion, that the certificate brings the case within the words of the stipulation. It follows, that the court were correct in refusing the evidence offered by the plaintiff. Judgment affirmed. Insurance. Survet/. Where a policy upon a vessel contains a clause, that " if the vessel, after a regular survey, shall he condemned for being unsound or rotten, the underwriters shall not be bound to pay the subscription on this policy," a report of surveyors that she was unsound and rotten, but not referring to the commencement of the voyage, is not sufficient to discharge the under- writers. Marine Ins. Co. of Alexandria v. Wilson, 3 Cranch, 187 ; 1 Cdnil. Rep. 489. Quere, Whether such report, even if it related to the commencement of the voyage, would be conclusive evidence. Ibid. Under a policy containing the following clause, •< and lastly, it is agreed that if the above vessel, upon a regular survey, should be thereby declared unseaworthy, by reason of her being linsound or rotten, then the assured shall not be bound to pay their subscriptions on this *1 791 P°''''y '" '"^ '' "*^ found by the jury, that the vessel was seaworthy "at the time of J the commencement of the risk, and when she sailed on the voyage insured : held, that proof, by a regular survey, of unsoundness at any subsequent period of the voyage, dis- charged the underwriters. Dorr v. Pacific Ins. Co., 7 Wheat. 581 ; 5 Cond. Rep. 360. An exemplification of a condemnation of the vessel in a foreign court of vice-admiralty, reciting the certificate of surveyors, that the vessel was unworthy of being repaired, and unsafe and unfit ever to go to spa again, and produced in evidlbnce by the insured to prove the loss, is " a regular survey" in the language of the above clause. Slid. But the survey must correspond with the contract, and if the vessel be declared unseawor- thyt for any additional cause, besides being " unsound or rotten," it will not avail the insurers. 3id. It is not essential to the plaintiff's recovery for an average loss on a valued policy, on ac- count of damage by the sea to the goods insured, that a survey should be made at the port of delivery before breaking bulk. Ibid. 146 FEBRUARY TERM, 1825. 172 Sixty Pipes of Brandy. Kennedy and Maitland, Claimants. 10 Wheaton's Reports, iil. UNDER the duty act of 1799, c. 126, [cxxvi.] s. 43, it is no cause of forfeiture, that the casks, which are marked and accompanied with the certificates required by the act, contain distilled spirits which have not been imported into the United States, or a mixture of domestic with foreign spirits ; the object of the act being the security of the revenue, without interfering with those mercantile devices which look only to individual profit without defrauding the government. *The Steamboat Thomas Jefferson. Johnson, and others, [*173 Claimants. 10 Wheaton'a Reports, 428. The district court baa not jurisdiction of a suit for wages earned on a voyage, in a steam vessel, from Shippingport, in the state of Kentucky, up the river Missouri, and back again to the port of departure, as a cause of admiralty and maritime jurisdiction. [See note at the end of the case.] The admiralty has no jurisdiction over contracts for the hire of seamen, except in cases where the service is substantially performed upon the sea, or upon waters within the ebb and flow of the tide. But the jurisdiction exists, although the commencement or termination of the voyage is at some place beyond the reach of the tide. It is sufficient, if the service is essentially a mari- time service. Quiere, Whether, under the power to regulate commerce among the several states, congress may not extend the remedy, by the summary process of the admiralty, to the case of voyages on the western waters 1 However this may be, the actiof 1790, c. 29, for the government and regulation of seamen in the merchant service, confines the remedy in the district courts to such cases as ordinarily belong to the admiralty jurisdiction. APPEAL from the circuit court of Kentucky. Mr. Justice Story delivered the opinion of the court. This is a suit brought in the district court of Kentucky for subtrac- tion of wages. The libel claims wages earned on a voyage from Ship- pingport, in that state, up the river Missouri, and back again to the port of departure ; and the question is, whether this case, as stated in the libel, is of admiralty and maritime jurisdiction, or otherwise within the jurisdiction of the district court? The court below dismissed the libel for want of jurisdiction, and the libellants have appealed from that decree to this court. In the great struggles between the courts of common law and the admiralty, the latter never attempted to assert any jurisdiction except 147 173 SUPREME COURT. [The Thomas Jefferson.] over maritime contracts. In respect to contracts for the hire of sea- men, the admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction, except in cases where the service •wa.s sub- stantially performed or to be performed upon the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limit which it was not at liberty to transcend. We say, the service was to be sub- stantially performed on the sea, or on tide-water, because there is no doubt that the jurisdiction exists, although the commencement or ter- *1741 ™'ii^tion *of the vqyage may happen to be at some place beyond -' the reach of the tide. The material consideration is, whether the service is essentially a maritime service. In the present case, the voyage, not only in its commencement and termination, but in all its intermediate progress, was several hundreds of miles above the ebb and flow of the tide ; and in no just sense can the wages be considered as earned in a maritime employment. Some reliance has been placed in argument upon that clause of the judiciary act of 1789,-ch. 20, s. 9, which includes all seizures made on waters navigable from the sea by vessels of ten or more tons burden, (of which description the waters in this case are,) within the admiralty jurisdiction. But this is a statuteable provision, and limited to the cases "there stated. To make the argument! available, it should be shown, that some act of congress had extended the right to sue in courts having admiralty jurisdiction, to cases of voyages of this nature. We have for this purpose examined the act of congress for the govern- ment and regulation of seamen in the merchants' service, (act of 1790, ch. 29,) and though its language is somewhat general^ we think that its strict interpretation confines the remedy in the admiralty to such cases as ordinarily belong to its cognisance, as maritime contracts for wages. It merely recognises the existing, and does not intend to con- fer any new jurisdiction. Whether, under the power to regulate com- merce between the states, congress may not extend the remedy, by the summary process of the admiralty, to the case of voyages on the western waters, it is unnecessary for us to consider. If the public in- convenience, from the want of a process of an analogous nature, shall be extensively felt, the attention of the legislature will doubtless be drawn to the subject. But we have now only to declare, that the pre- sent suit is not maintainable as a cause of admiralty and maritime jurisdiction, upon acknowledged principles of law. The decree of the circuit court, dismissing the libel for want of juris- diction, is therefore affirmed. Decree accordingly. Admiraltj/ jurisdiction. See notes, 1 Cond. Rep. 133. A libel was filed in the district court of the United States for the eastern district of Louisiana, against the steamboat Planter, by H. and V., citizens of New Orleans, for the recovery of a sum of money alleged to be due to them, as shipwrights, for work done and materials found in the repairs of the Planter. The libel asserts that, by the admiralty law and the laws of the state of Louisiana, they have a lien and privilege upon the boat, her tackle, &c., for the pay- ment of the sums due for the repairs and materials, and prays admiralty process against the boat, &c. The answer of the owners of the Planter avers that they are citizens of Louisiana, *1 iTKT ™^'^'"S '" ^^^ Orleans ; that the libellants are also 'citizens, and that the court i-i"] have no jurisdiction of the cause. Held, that this was a case of admiralty jurisdic- tion. Peyroux et at. v. Howard et tU^ 7 Peters, 324. 148 FEBRUARY TERM, 1825. 175 [The Santa Maria.] By the civil code of Louisiana, workmen employed in the construction or repairs of ships or boats enjoy the privilege of a lien on such ships or boats, without being bound to reduce their contracts to writing, whatever may be their amount ; but this privilege ceases if they have allowed the ship or boat to depart without exercising their rights. The state law, therefore, gives a hen in this case. Ibid. In the case of the General Smith, 4 Wheat. 438, S. C. 4 Cond. Rep. 493, it is decided that the jurisdiction of the admiralty in cases where the repairs are upon a domestic vessel, depends upon the local law of the state. Where the repairs have been made Or necessaries furnished to a foreign ship, or to a ship in the ports of a state to which she does not belong, the general maritime law gives a lien on ships as security ; and the party may maintain a suit in the admi- ralty to enforce his right. But, as to repairs or necessaries in the port or state to which the ships belong, the case is governed altogether by the local law of the state ; as no lien is implied unless it is recognised by that law. , But if the local law gives the lien, it may be enforced in the admiralty. Ibid. The services in this case were performed in the port of IVew Orleans, and whether this was within the jurisdiction of the admiralty or not, depends on the fact whether the tide in the Mis- sissippi ebbs and flows as high up the river as the port of New Orleans, The court considered themselves authorized judicially to notice the situation of New Orleans, for the purpose of de- termining whether the tide ebbs and flows as high up the river as that place ; and being satis- fied that although the current of the Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet the elfect of the tide upon the current is so great as to occa- sion a regular rise and fall of the water ; New Orleans may be properly said to be within the ebb and flow of the tide, and the jurisdiction of the admiralty prevails there. Ibid. In order to the decision whether the admiralty jurisdiction attaches to such services as those performed by the libellants, the material consideration is, whether the service was essentially a maritime service, and to be performed substantially on the sea or tide-water. It is no objection to the jurisdiction of the admiralty in the case, that the steamboat Planter was to be employed in navigating waters beyond the ebb and flow of the tide. In the case of the steamboat JeSer- son, it was said by this court that there is no doubt the jurisdiction exists, although the com- mencement or termination of the voyage may happen to be at some place beyond the reach of the tide. Ibid. Some of the older authorities seem to give countenance to the doctrine tbht an express con- tract operates as a waiver of the lien : but it is settled at the present day, that an express con- tract for a stipulated sum is not of itself a waiver of a lien ; but that, to produce the efiect, the contract must contain some stipulations inconsistent with the continuance of such lien, or from which a waiver may fairly be inferred. Ibid. *The Santa Maria. The Spanish Consul, Libellant. [*176 10 Wheatm's Reports, 431. Upon an appeal from a mandate to carry into efiect a former decree of the court, nothing is before the court but the proceedings subsequent to the mandate. But the original proceedings are always before the court, so far as is necessary to determine any new points in controversy between the parties, which are not terminated by the original decree. After a general decree of restitution in this court, the captors, or purchasers under them, cannot set up in the court below new claims for equitable deductions, meliorations, and charges, even if such claims might have been allowed, had they been asserted before the original decree. Nor can the claimants, or original owners, in such a case, set up a claim for interest upon the stipulation taken in the usual form, for the appraised value of the goods, interest not being mentioned in the stipulation itself. Nor can interest be decreed against the captors personally, by way of damages for the d> n2 149 176 SUPREME COURT. [The Santa Maria.] tention and delay, no such claim having been set up, upon the original hearing in the court below, or upon the original appeal to this court. The case ofRose v. Himely, 5 Cranch, 313, 2 Cond. Hep. 266, reviewed, explained, and con- firmed. Upon a mandate to the circuit court, to carry into effect a general decree of restitution by this court, where the property has been delivered upon a stipulation for the appraised value, and ' the duties paid upon it by the party to whom it is delivered, the amount of the duties is to be deducted from the appraised value. APPEAL from the circuit court of Maryland. This cause was formerly before the court, and the decision then pro- nounced will be found reported in 7 Wheat. 490, 5 Cond. Rep. 332. The claim of Mr. Burke, as a bonae fidaei purchaser, was then rejected, upon the ground of the illegality of the original capture, it having been made in violation of the neutrality of the United States ; and a general decree of restitution was awarded in favour of the libellant, suing in his official character as the consul of Spain, for the benefit of the original owners. A mandate issued from this court to the court below, to carry that decree into effect. Pending the original proceedings in the court below, and before the appeal, the property, upon the application of Mr. Burke, was delivered to him, upon a stipulation given with sureties in the usual manner, for the payment of the appraised value, according to the future decree of the court. The appraisers estimated the property at seven thousand four hundred and seventy-three dollars and forty- three cents, being, as they declare, " the long price, including custom- house duties," and for this sum, the stipulation was given. Upon the ^■itm-i application to the court below, to enforce the mandate of this -I court, Mr. ^Burke filed a petition, asserting that he had incurred cost and expenses, and paid certain liens upon the property. The specifications now insisted on, were the fallowing: 1. Insurance on the property from Galveztown to Baltimore, viz. seven hundred and fifty- one dollars and twenty-five cents. 2. Duties paid on the same at Bal- timore, viz. one thousand nine hundred and forty-five dollars and four- teen cents. A petition was also filed on behalf of Mr. Burke and a Mr. Forbes, (who now, for the first t.ime, appeared in the cause,) as joint owners of the schooner Harriet, in which the property in question was brought from Galveztown to Baltimore, praying for the allowance of freight for the voyage, amounting to one thousand five hundred dollars. The libellant also made an application for interest upon the amount of the stipulation to be decreed in his favour, either from the time of cap- ture, from the date of the stipulation, or from the decree of this court. The respective claims of all the parties for these allowances were rejected by the circuit court, and from the decree dismissing them an appeal was taken to this court. The case was argued by Mr. Wirt, Attorney-General, for Burke the appellant ; and by Mr. D. Hoffinan, contra. Mr. Wirt cited : Jennings v. Carson, 4 CrancKs Rep. 23, 2 Cond. Rep. 2. Rose V. Himely, 5 Crunch's Rep. 313, 2 Cond. Rep. 266. The Bet- sey, 5 Rob. 295. The Fortuna, 4 Rob. 228. The Vrow Anna Catha- rina, 6 Rob. 269. The Nereide, 1 Wheat. Rep. 171, 3 Cond. Rep. 538. The St. Lawrence, 2 Gallis. 20. 5 Cranch, 281, 2 Cond. Rep. 256. 5 Cranch,3l6, 2 Cond. Rep. 266. The Concord, 9 fJranch, 387, 3 Cond. Rep. 438. 150 FEBRUARY TERM, 1825. 177 [The Santa Maria.] Mr. Hoffman cited : 5 Cranch's Rep. 317, 2 Cond. Rep. 266. 1 Wheat. Rep. 304, 354, 3 Cond. Rep. 575. 1 P. Wms. 396. 1 Binn. Rep. 494. 9 Johns. iJep. 71. 11 Mass. Rep. 504. 1 N. Hamp. Rep. 180. The Diana, 3 Wheat. Rep. 58, 3 Cond. Rep. 196. 3 Dull. Rep. 333, 336. 2 Burr. Rep. 1088. 1 H. Bl. 305. 3 Wils. Rep. 205. 7 Term Rep. 124. 2 5os. a»id PmZZ. 219. 1 Johns. Cas. 27. 1 Johns. Rep. 343. 4 iJfass. iJep. 171. Mr. Justice Story delivered the opinion of the court, and, after stating the case, proceeded as follows : Several preliminary questions havQ been argued, which must be dis- posed of before the court can entertain any question upon the merits of these claims ; and, if disposed of one way, they put an end to the controversy. In the first place, it is asserted that Mr. Burke is a malse iidei claim- ant, entitled to no favour whatever, and, by reference to the original *proceedings, will be found a party to the wrongful capture and r#i «o detention of the property. And the first question, therefore, that ■- arises, is, whether upon this appeal the court can look into those pro- ceedings for the purpose of ascertaining the guilt or innocence of the claimant ? The principle laid down in the case of Rose v. Himely, 5 Cranch, 313, 2 Cond. Rep. 266, that upon an appeal from a mandate nothing is before the court but the proceedings subsequent to the man- date, is undoubtedly correct in the sense irt which that expression was used, with reference to the doctrine of that case. Whatever had been formerly before the court, and was disposed of by its decree, was con- sidered as finally disposed of; arid the question of interest raised upon the execution of the mandate in that case, was in that predicament. But upon all proceedings to carry into effect the decree of the court, the original proceedings are always before the court, so far as they are necessary to determine any new points or rights in controversy between the parties, which were not terminated by the original decree. The court may, therefore, inspect the original proceedings, to ascertain the merits or demerits of the parties, so far as they bear on the new claims, and must decide upon the whole examination what its duty requires. In the present case, it is impossible to separate the stipulation from the other proceedings. It is unintelligible without reference to them. The court must inspect them, to guide it in its future acts, and to enable it to carry into effect the decree of the supreme court. That decree restores the property generally as claimed by the libellant ; but what that property is, in what predicament it is, and what are the means by which it is to be restored, must be ascertained before the court can institute any farther proceedings. Another preliminary question is, whether the subject-matter of these claims is, in this stage of the cause, open for discussion. All the claims of Mr. Burke might certainly have been brought forward and insisted upon in the original proceedings. If his right to the property was not established, still he might be entitled to equitable deductions for meliorations or charges ; and if these claims were favoured by the court, the decree of restitution would have been subject to these de- ductions. They would then have constituted a lien upon the property, and the circuit court must have enforced it. But no such claims were 151 178 SUPREME COURT. [The Santa Maria.] insisted upon in the written allegations, or even viva voce at the hear- ing; the omission was voluntary, and the decree of restitution passed in the most absolute and unconditional form. The consequences of now admitting them to be brought before this court by appeal, would be most inconvenient and mischievous in practice. It would encou- rage the grossest laches and delays. The party might lie by through *17Q1 *^ whole progress of the original cause, until a final decree, J holding the real owner out of his property, and securely enjoy- ing, as in this case, the profits, and then start new claims for future investigation, which would protract the final decision to an indefinite period. Such a course would have a tendency justly to bring into dis- repute the administration of justfce, and inflict upon the innocent all the evils of expensive litigation. We think, therefore, that, upon prin- ciple, every existing claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceed- ings ; and when a decree has been made, which is in its own terms absolute, it is to be carried into effect according to those terms, and excludes all inquiry between the litigating parties as to liens or claims, which might have been attached to it by the court, if they had been previously brought to its notice. These remarks apply as well to the claim for freight, as the other items. Mr. Burke, as the importer of the goods, would, if the carrier ship had belonged to a mere stranger, have b^en directly responsible for the freight; and would have been entitled to bring it forward in the original suit as an equitable charge. It can make no difference in his favour, that he was, as he now asserts himself in his petition to be, a joint owner of the vessel with Mr. Forbes. Whether, as between himself and his co-proprietor, he would be liable to pay any freight, does not appear, for the petition is naked of any proofs, and he may have occupied only his own portion of the vessel. Nor is there any evidence adduced, that Mr. Forbes was really a joint owner ; and in his original claim, Mr. Burke expressly asserts the vessel to be his own, in terms which imply a sole proprietary interest. But without relying on these circumstances, it is sufficient to say, that it is too late for Mr. Burke in any way to assert the claim for freight, and if payable at all, he must now bear the burden occasioned by nis own laches. This view of the subject makes it wholly unnecessary to enter upon the inquiiy, how far Mr. Burke is an innocent possessor of the property in controversy, and, as such, entitled to equitable deductions and charges. The claim, whether a lien, or a mere equity, has been totally displaced by the unconditional decree of restitution. The same doctrine applies to the claim of interest made by the libel- lant. The question was involved in the original proceedings, and the libel itself contains an express prayer for damages, as well as for resti- tution of the property. Damages are often given by way of interest for the illegal seizure and detention of property ; and, indeed, in cases of tort, if given at all, interest partakes of the very nature of damages. ♦1 ROT *'^^'^ ground now assumed is, that interest ought to be given since J the date of the stipulation, or, at all events, since the decree of restitution, because the claimant has had the use of the property during this period, and it is but a just compensation to the libellant for the 152 FEBRUARY TERM, 1825. 180 [The Santa Maria.] delay and loss he has sustained by the dispossession. It might have been just and proper for the court below to have refused the delivery of the property upon stipulation, unless upon the express condition, that the same should carry interest, if so decreed by the court. And, in cases of this nature, it appears to us highly proper that such a clause should be inserted in the stipulation. But the present stipulation con- itains no such clause, and, therefore, so far as respects the principal and sureties, to decree it upon that, would be to include a liability not justified by its terms. It is true, that interest might be decreed against Mr. Burke personally, not as the stipulator, but as the claimant in the cause ; but then it would be by way of damages for the detention or delay. In this view, it was a matter open for discussion upon the original appeal ; and no interest having been then asked for or granted, the claim is finally at rest. What was matter formerly before the court cannot again be drawn into controversy. We have considered these questions thus far upon principle. But they have been already decided by this court. The case of Rose v. Himely, 5 Crunch's Rep. 313, 2 Cond. Rep. 266, is directly in point. The authority of that case has not been in the slightest degree im- pugned, and, without overthrowing it, this court could not now enter- tain the present claims. We are not disposed to doubt the entire correctness of that adjudication. The question in regard to the duties, admits of a very different con- sideration. The decree of restitution awards to the libellant the whole property in controversy, and nothing more. Upon the face of the pro- ceedings it appears, that the stipulation was taken for the appraised value of the property, including the duties paid to the United States by the claimant. The amount of those duties never constituted any part of the property of the libellant, or those for whom he acts. Neither he nor they have ever incurred the charge, or made the advance. And if it is now given to the libellant, it is a sum beyond the value of the pro- perty, which has been paid upon the importation without his aid, and without any injury to him or his principal. It is true, that in the hands of the claimant the property may be assumed to be worth the whole appraised value ; but{#hat value includes not only the value of the pro- perty per se, but the afnount of the duties already paid by the claimant. In receiving it, the claimant has received no more of the libellant's property than the sum, deducting the duties already paid. It has been *said that the property was wrongfully brought to the United r:|ti£}| States by the claimant, and therefore, he is not entitled to favour. L This might be a satisfactory answer to any attempt of Ihe claimant to charge the libellant with the duties as an equitable charge. But no such claim has been asserted ; and if the court were now to decree to the libellant the whole sum in the stipulation, the decree in effect would require the claimant to pay the duties to the libellant, as well as to the government. The original decree purports no such thing. It is con- fined to simple restitution of the property ; and the proceeds substi- tuted for that, are the net sum, deducting the duties, the market price, or appraised value, being compounded of the original value and the duties. These observations are confined to a case, where the error in the stipulation is apparent upon the face of the proceedings ; and it Vol. VI.— 20 153 181 SUPREME COURT. [Day V. Chism.] would be dangerous, as well as improper, to entertain the question, where the evidence must be sought from extrinsic sources. Upon the whole, the decree of the circuit court is affirmed as to all things, except the disallowance of the claim for the deduction of duties, and as to that, it is reversed ; and it is ordered that the libellant have restitution of the net appraised value, deducting the duties; and that as to so much thereof as has not been already paid to him, interest be allowed to him at the rate of six per cent, per annum, from the time of the allowance of the present appeal, unto the final execution of this decree, and that the stipulation stand security therefor. PeMrs's Digest, " Mandate." Day and others v. Chism. 10 Wheaton's Reports, 449. In a declaration upon a covenant of warranty, it is necessary, to allege substantially an evic- tion by title paramount ; but no formal terms are prescribed in which the averment is to be made. Where it was averred in such a declaration, " that the said 0. had not a good and su£Scient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dis- possessed of the said premises by due course of law," it was held sufficient as a substantial averment of an eviction by title paramount. Where the plaintiffs declared in covenant both as heirs and devisees, without showing in #1 fiQl *PA'''<^"'^'' '>°w 'hey were heirs, and without setting out the will, it was held not •'"■*J to be fatal on general demurrer. Such a defect may be amended under the thirty-second section of the judiciary act of 1789, ch. 20. [See note at the end of the case.] ERROR to the circuit court of Tennessee. This cause was argued by Mr. Bibb, for the pHtintifTin error ; and by Mr. Eaton, for the defendant in error. Mr. Chief Justice Marshall delivered the opinion of the court. This is an action of covenant brought by the heirs and devisees of Nathaniel Day, in the court for the seventh circuit, for the district of Tennessee, on a covenant contained in a deed from the defendant to the said Nathaniel Day, purporting to convey a tract of land therein men- tioned. The declaration, which contains six counts, states the covenant in the fourth in the following words : that the said Obadiah Chism, the defendant, " then and there, by the said indenture, covenanted and agreed with the said Nathaniel Day, his heirs and assigns, to warrant and defend the title to the said premises against the claim of all and every other person whatsoever, as his own proper right in fee simple." In the fifth count, the covenant alleged is, " to warrant and defend the land against all and every person whatever." In some of the counts, the only breach assigned is want of title in the defendant. The fourth and fifth counts charge, that "the said Oba- 154 FEBRUARY TERM, 1825. 182 [Day V. Chism.] diah, the defendant, hath not kept and performed his covenant so made with the said Nathaniel aforesaid, with the said Nathaniel in his life- time, nor with the plaintiffs since his death, but hath broken it, in this, that he hath not warranted and defended the title to said premises, described in said covenant, against all and every person whatsoever, to said Nathaniel Day, his heirs and assigns ; and also in this, that the said Obadiah had no title to said tract of land, but it was vested in the state of Tennessee ; and the said plaintiffs aver, that by reason of said want of title in said Obadiah, the said Nathaniel, in his lifetime, and the plaintiffs since his death, were unable to obtain possession thereof, or to derive any benefit therefrom ; and also in this, that the said Oba- diah had not a good and sufficient title to the said tract of land, and by reason thereof, the said plaintiffs were ousted and dispossessed of the said premises by due course of law ; and also in this, that the said Obadiah had no title to the said premises, but the same was in the state of North Carolina, by reason whereof the said Nathaniel, in his lifetime, and the plaintiffs since his death, were and are unable to obtain possession of the said premises. The defendant demurred to the declaration, and assigned for cause *of demurrer, that, 1st. " It does not appear in and by the said r^ioo declaration, any averment or allegation therein, that the said <- plaintiffs have been evicted by a title paramount to the title of the de- fendant ; and, 2d. The said declaration is, in other respects, defective, uncertain, and informal." The covenant stated in the declaration is, we think, a covenant of warranty, and not a covenant of seisin, or that the vendor has title. In an action on such a covenant, it is undoubtedly necessary to allege, substantially, an eviction by title paramount, but we do not think that any formal words are prescribed, in which this allegation is to be made. It is not necessary to say in terms, that the plaintiff has been evicted by a title paramount to that of the defendants. In this case, we think such an eviction is averred substantially. The plaintiffs aver, " that the said Obadiah had not a good and sufficient title to the said tract of land ; and by reason thereof, the said plaintiffs were ousted and dispossessed of the said premises by due course of law." This aver- ment, we think, contains all the facts which constitute an eviction by title paramount. The person who, from want of title, is dispossessed and ousted by due course of law, must, we think, be evicted by title paramount. We think, then, that the special cause assigned for the demurrer will not sustain it. There are other defects in the declaration, which are supposed by the counsel for the defendants in error to be sufficient to support the judgment. The plaintiffs claim both as heirs and devisees, and do not show in particular how they are heirs, nor do they set out the will. It is undoubtedly true, that their title cannot be in both characters, and that the will, if it passes the estate differently from what it would pass at law, defeats their title as heirs. But a man may devise lands to his heirs, and the- statement that they are his heirs, as well as his devisees, though not a strictly artificial mode of declaring, is an error of form and not of substance. Of the same character is, we think, the omission to state how the plaintiffs are heirs, or to set out the will. 155 183 , SUPREME COURT. [M'Dowell V. Peyton.] Although in the case of Denham v. Stevenson, 1 Salk. 355, 6 Mod. 241, the court says, " that where H. sues as heir, he must show his pedigree, and coment heres, for it lies in his proper knowledge," the court does not say that the omission to do this would be fatal on a general demurrer, or that it is an error in substance. The plaintiff must show how he is heir on the trial ; and the thirty-second section of the judiciary act of 1789, c. 20, applies, we think, to omissions of this description. The judgment may be-given, " according to the right of the cause, and matter in law," although the declaration may not *1841 ^^^^ *whether the plaintiff is the son or brother of his ancestor, -' or may not set out the will at large. An averment that he is the heir or the devisee, avers substantially a valid title, which it is in- cumbent on him to prove at the trial. The declaration presents another objection, respecting which the court has felt considerable difficulty. In the same count breaches are assigned which are directly repugnant to each other. The plaintiffs allege, that from the defect of title in the vendor, they have not been able to obtain possession of the premises ; and also, that they have been dispossessed of those premises by due course of law. These averments are in opposition to each other. But the allegation that possession has never been obtained is immaterial, because not a breach of the cove-, nant, and, the majority of the court is disposed to think, may be disre- garded on a general demurrer. It is the opinion of the court, that the fourth arid fifth counts, how- ever informal, have substance enough in them to be maintained against a general demurrer, and that the judgment must be reversed, and the cause remanded for further proceedings. It will be in the power of the circuit court to allow the parties to amend their pleadings. Judgment reversed accordingly. Amendment. See notes, 2 Oond. Rep. 176. M'Dowell V. Peyton and others. 10 Wheaiori's Reports, 454. THE following entry, "I. T. enters ten thousand acres of land, on part of a treasury warrant. No. 9739, to be laid off in one or more sur- veys, lying between Stoner's fork and Kingston's fork, about six or seven miles nearly north-east of Harrod's lick, at two white-ash sap- lings from one root, with the letter K marked on each of them, stand- ing at the forks of a west branch of Kingston's fork, on the east side of the branch, then running a line from said ash saplings, south forty- *i«M five *degrees east, one thousand six hundred poles, thence ex- J tending from each end of this line north forty-five east, down the branch, until a line nearly parallel to the beginning line shall in- 156 FEBRUARY TERM, 1825. 185 [Darby v, Mayer.] elude the quantity of vacant land, exclusive of prior claims," is not a valid entry, there being no proof that the " two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Kingston's fork," had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, with- out further aid than is afforded by the information that the land lies between those forks. Darby's Lessee v. Mayer and another. 10 Wheaton's Reports, 465. Quiere, How far a wMl of lands, duly proved and recorded in one state, so as to be evidence in the courts of that state, is thereby rendered evidence in the courts of another state, (provided the record on its face sfaovrs that it possesses all the solemnities required by the laws of the state where the land lies,) under the fourth art. sec. 1, of the constitution of the United States ? The lex loci rei sitee governs as to the effect of a devise in one country of lands in another. By the laws of Tennessee, the probate of a will of lands in another state is not made evidence in an ejectment for lands in Tennessee. Quaere, How far this general principle is modified by the provisions of the constitution and laws of the United States in respect to the faith and credit, &c., to be given to the public acts, records, and judicial proceedings of each state in every other state ? The local law of Maryland, as to the effect of evidence of the probate of a will of lands, in an action of ejectment, is the same with the common bw. [See note at the end of the case.] A duly certified copy of a will of lands, and the probate thereof, in the orphans' court of Maryland, is not evidence in an action of ejectment, of a devise of lands- in Tennessee. ERROR to the circuit court of West Tennessee. This cause was argued by Mr. Bibb and Mr. Isaacs, for the plaintiff in error ; and by Mr. White and Mr. D. Hoffinan, for the defendants in error. Mr. Justice Johnson delivered the opinion of the court. *This was an action of ejectment, in which the present plain- r#jQ/> tiff was plaintiff in the court below. His title is derived through ^ a patent to one John Rice, and successive conveyances down to him- self, which it is immaterial to recapitulate, since no question arises upon this part of the evidence. The defence set up was the statute of limitations, and in order to bring himself within its provisions, the de- fendant received the patent under which the plaintiff claims, as the patent for his own land, and undertakes to connect himself with it. This gave rise to a variety of exceptions taken by the plaintiff to the evidence offered by. the defendant for this purpose, to which the de- fendant replies, that should he have failed in establishing a connection by a claim of title, he has complied with the statute notwithstanding, by proving his possession within the patent issued to Rice, which, he contends, is all the connection with a patent which the law requires. One of the grounds of exception made by the 'olaintiff is, that the O 157 186 SUPREME COURT. [Darby v. Mayer.] evidence of the defendant proves his possession to be upon a tract of land essentially different from that which the patent covers. And not a little difficulty has existed on this part of the case, to understand the counsel when discussing the question of identity. AH this has arisen from omitting to have the locus in quo established by a survey; an omission to which the court takes this opportunity to express its dis- approbation. It is true, that the case upon this bill of exceptions can be disposed of without such a survey, but great facility would have been afforded by a survey, in understanding the discussion, which, without it, was scarcely intelligible. It is very obvious, when we refer to the patent to Rice under which the plaintiff claims, and the entry to Ramsay through which the defendant deduces title, both of which are made parts of the bill of exceptions, that they do not describe the same land. On the contrary, that to Rice, calling for the entry to Ramsay as its eastern boundary, must necessarily lie without it. However, we are of opinion, that we are not now at liberty to notice this inconsistency. The bill of exceptions states, that the plaintiff proved the defendant in possession of the land granted to Rice, and the defendant proved himself in possession of the land entered to Ramsay, both concurring in the fact that the land in the defendant's possession was the land in controversy ; from which it certainly results that Rice held a patent for Ramsay's entry. But the defendant having no patent, the other has, of course, the legal estate in him, which may be barred by the defendant's possession, if he brings himself within the provisions of the statute. In order to connect himself with the patent, the defendant proved a sale of the inchoate interest of John Rice to one Solomon Kitts, and *] 871 *^^® °^^* ''°^ ^" ^^^ *'*'® depended upon the will of Solomon Kitts. •J To prove that Kitts devised the land to the trustees through whom defendant made title, a copy and probate of the will of Kitts was produced in evidence, duly certified from the orphans' court of Balti- more county, Maryland, in which, it seems, the will had been recently proved and recorded. This evidence was excepted to, but the court overruled the exception and it went to the jury. The question is, whether the evidence thus offered was legal evidence of a devise of land. The common law doctrine on this subject no one contests ; the ordi- nary's probate was no evidence of the execution of the will in eject- ment. Where the will itself was in existence, and could be produced, it was necessary to produce it ; when the will was lost, or could not be procured to be produced in evidence, secondary evidence was necessarily resorted to, according to the nature of the case. But whatever proof was made, was required to be made before the court that tried the cause ; the proof before the ordinary being ex parte, and the heir at law having had no opportunity to cross-examine the witnesses ; neither were the same solemnities required to admit the will to probate as were indispensable to give it validity as a devise of real estate. At first it was a question of controversy between the common law and ecclesi- astical courts, whether a will, containing a devise of lands, should not be precluded from probate, although containing a bequest of personalty also. And the question was one of serious import, since the common law courts required the production of the original, whereas the conse- 158 FEBRUARY TERM, 1825. 187 [Darby v. Mayer.] quence of probate was, that the original should be consigned to the archives of the court that proved it. This was at length compromised, and the practice introduced of delivering out the will, when necessary, upon security to return it. Upon general principles, there is no question, that lands in Tennessee must, in all respects, be subject to the land laws of Tennessee. Their laws affecting devises, and the rules of their courts respecting evidence in ejectment, must be the law of this case, as far as the constitution of the United States does not control the one or the other. With regard to the modification under which the right of devising may be exercised, there is no question that the power of the state is unlimited ; and wills of realty, wherever executed, must conform to the laws of Tennessee. The right of determining whether its laws have been complied with in this respect, is a necessary result from the power of passing those laws. But in this respect, it has been supposed, that the right of the states is in some measure controlled by that article of the constitution, which declares " that full faith and credit shall be ♦given in each state to the public acts, records, and judicial pro- r:|j,tQc ceedings of every other state." And hence that a will of lands <- duly recorded in one state so as to be evidence in the courts of that state, is rendered evidence thereby in the court of every other state, provided the record, on the face of it, shows that it possessed the so- lemnities required by the laws of the state where the land lies. As this is a question of some delicacy as it relates to devises of lands, the court passes it over at present, being induced to adopt the opinion, that the rule could not be applied to this case, since the laws of Mary- land do not make the probate here offered evidence in a land cause in the courts of that state. That the law of Maryland, with regard to the evidence of a devise in ejectment, is the common law of England, is clearly recognised in the case of Smith's lessee v. Steele, 1 Harris and MHenry, 419. In that case, as in this, a copy of the will and probate were offered in evidence, and was supported by proof of the loss of the original will from the office of probates. Yet the whole argument turns, not on the admission of the copy and probate per se, but whether admissible at all to prove the existence and contents of the original will. And the court declare, in permitting it to be read in evidence to the jury, that they are at liberty to find for or against the original will, not holding them bound from the production of the probate to find for the plaintiffs. It is observable also in that case, that it is yielded in argument through- out, that the admission of the probate could only be sustained on the idea, that the acts of 1704 and 1715, now no more in force, permitted the ordinary to take probate of wills of land. But it has been supposed, that the Maryland law of probates of 1798, has, by express enactment, maide such probates evidence in their own courts. And had it been shown, that such had been the established construction of that law, and the practice of the state courts under it, this court would not have hesitated to relinquish their own views on the correct construction to be given to that clause. As it is, we must pursue the suggestions of our own minds with regard to the legal construction of the act. The clause alluded to is the fourth section, chapter two, article three 159 188 SUPREME COURT. [Darby v. Mayer.] of the act in question, and is in these words : " an attested copy, under the seal of office, of any will, testament, or codicil, recorded in any office authorized to record the same, shall be admitted in evidence in any court of law or equity, provided that the execution of the original will or codicil be subject to be contested until a probate hath been had according to this act." It is true, that the generality of the terms in the first lines of this *18Q1 *<^'^'^^^' i^ ^^^^ ^^ would, if unrestricted by the context, em- J brace wills of lands. It is also true, that the previous chapter in the same article prescribes the formalities necessary to give validity to devises of real estate ; it is further true, that the previous sections of the second chapter indicate the means, and impose the duty of deliver- ing up wills of all descriptions to the register of the court of probates, for safe keeping, after the death of the testator, and until they shall be demanded by some person authorized to demand them for the purpose of proving them. But it is equally true, that the act does not authorize the registering of any will without probate. Nor does it, in any one of its provisions, relate to the probate of any wills, except wills of goods and chattels. The clause recited makes evidence of such wills only as are recorded in the offices of courts authorized to record them. But when the power of taking probate is expressly limited to the probate of wills of goods and chattels, we see not with what propriety the meaning of the clause in question can be extended to wills of any other description. The orphans' court may take probates of wills, though they affect lands, provided they also affect goods and chattels ; but the will, nevertheless, is conclusively established only as to the personalty. Unless the words be explicit and imperative to the contrary, the con- struction must necessarily conform to the existing laws of the state on the subject of wills of real estate. And when the power of taking probates is confined to wills of personalty, we think the construction of the clause recited must be limited by the context. We are, therefore, of opinion, that there was nothing in the law of Maryland which could, under the constitution, make the document offered to prove this will per se evidence in a land cause. Nor does there appear to exist any rule of law in Tennessee, which could make such a document good evidence under the laws of that state. Since, therefore, the charge of the court was general in favour of the defendants, and the effect of each particular piece of evidence upon the minds of the jury cannot be discriminated, this opinion disposes of the whole cause. The case presents several other, and very important questions, but the court will at present decline remarking on them. Judgment reversed, and a venire facias de novo awarded. • Will. Probate. A will, regularly proved in another state, in strict conformity with the laws of that state, acquires, if it possess the other legal requisites, a binding efficacy in Virginia, so that it may be admitted to record. Carter's heirs v. Cutting et ux., 8 Cranch, 251, 3 Cond. Rep. 108. «*' ^" executor of a will, made in Virginia, devising to him i""J land in Kentucky, should take out letters testamentary in Kentucky, to enable him to maintain ejectment for it. Doe M'Farland et al., 9 Cranch, 151, 3 Cond. Rep. 317. A testamentary paper, executed in a foreign country, even if executed so as to give it the 160 FEBRUARY TERM, 1825. 190 [Manro v. Almeida.] effect of a last will and testament by the foreign law, cannot be made the foundation of a suit for a legacy in the courts of this country, until it has received probate here, in the courts having the peculiar jurisdiction over wills. Armstrong v. Lear, adm. 4-c., 12 Wheat. 169, 6 Cond. Rep. Where a suit in one state brings incidentally in question the title to land held under a devise in another state, it is not necessary that there should be probate of the will in the state where the suit is brought, before it can be used as evidence of title. S!eu:k et al. v. Walmtt et al., 3 Mason, 508. The copy of a will of lands lying in Pennsylvania, made in New York, proved before the surrogate of New York, by one of the subscribing witnesses, who also proved that the other two witnesses attested the same in presence of the testator, authenticated under the seal of the surrogate's office, and entered in the office of the register-general of Pennsylvania, is not admissible in evidence in Pennsylvania. In all cases, no matter where the will is made and proved, if it concern land in Pennsylvania, it must be proved by two witnesses. Hyltan's lessee v. Broum, 1 Wash. C. C. E. 204, 298, 343. J.' Manro and others v. Joseph Almeida, and the goods, chattels* and credits of the said Almeida. 10 Wheaton's Reports, 473. The courts of the United States, proceeding as courts of admiralty and maritime jurisdiction, have jurisdiction in cases of maritime torts, in personam as well as in rem. [See note at the end of the case.] The courts of the United States, proceeding as courts of admiralty and maritime jurisdiction, may issue the process of attachment to compel appearance, both in cases of maritime torts and contracts. Under the process act of 1792, ch. 137, sect. 2, the proceedings in cases of admiralty and maritime jurisdiction in the courts of the United States, are to be according to the modified admiralty practice in our own country engrafted upon the British practice ; and it is not a sufficient reason for rejecting a particular process, which has been constantly used in the admiralty courts of this country, that it has fallen into desuetude in England. The process by attachment may issue, wherever the defendant has concealed himself or absconded from the country, and the goods to be attached are vrithin the jurisdiction of the admiralty. It may issue against his goods and chattels, and against his credits and effects in the hands of third persons. 'The remedy by attachment in the admiralty, in maritime cases, applies even where ^ , „. the same goods are liable to the process of foreign attachment, issuing from the L '■"'■ courts of common law. It applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence. In case of default, the property attached may be condemned to answer the demand of the libellant. It is not necessary that the property to be attached should be specified in the libel. It seems, that an attachment cannot issue without an express order of the judge, but it may be issued simultaneously with the monition ; and where the attachment issued in this manner, and in pursuance of the prayer of the libel, this court will presume that it was regularly issued. APPEAL from the circuit court of Maryland. This was a libel filed in the district court by the appellants, resident merchants of Baltimore, against the respondent, Almeida, charging him with having forcibly and piratically taken from on board a certain Vol. VI.— 21 o2 161 191 SUPREME COURT. {Manro v. Almeida.] vessel, off the capes of the Chesapeake, and within the territorial limits of the United States, the sum of five thousand dollars, in Specie, belong- ing to the appellants, and converted the same to his own use, without bringing it into any port or place for adjudication. The libel further stated, that the said Almeida had absconded from the United States, and fled beyond the jurisdiction of the court, and that no means of redress remained for the libellants, unless by process of attachment against the goods, chattels, and credits of the said Almeida, which were also about to be removed, by his orders, to foreign parts. The libel also prayed a personal monition, and likewise viis et modis, and that the respondent might answer the premises on oath, and be compelled to pay the appellants the said sum of five thousand dollars, and damages ; and in default thereof, that his goods,chattels, and credits, when attached, be condemned to answer the premises, &c. The marshal returned, that he had attached certain goods and chattels of the said Almeida ; that the said Almeida was not to be found within the district, and that he had left a copy of the monition at the late dwelling-house of Almeida, and had aflixed it at the public exchange, and on the mast of the vessel containing the goods and chattels attached by him. But although the transcript of the record contained a petition for the sale of the attached goods, and an order of the court denying the prayer of the petition ; yet it did not appear by the record by what authority the attachment issued. But it appeared by the admission of counsel at the hearing, that the attachment had been issued by the clerk of the district court, as a process of course, without any particular order of the judge. The respondent appeared by a proctor of the court, and demurred to the *1Q21 ''^^'' ^^ ^^^ argument of the demurrer, the district *court dis- J missed the libel, and ordered that the goods, chattels, and credits attached, should be restored with costs. This decree being affirmed, pro forma, by the circuit court, the cause was brought by appeal to this court. Mr. Hoffman and Mr. Mayer, for the appellants, cited: 2 Bro. Civ. and Adm. Law, 333. Yan Leeuwen's Rom. Dutch Law, 542, 543, 546. 548. Hall's Mm. Pract. 60, 61, 63, 70, 78, 82, 89. Bee's Adm. Rep. 60, 64, 141, 186. 2 Gallis. Rep. 41. Del Col v. Arnold, 3 Ball. 333. 1 Cond. Rep. 150. The Cassius, 3 Dall. 123. 3 Sir L. Jenkins's Works, 714, 754. Sergeant's Law of Attach. 44. 2 Bro. Pennsylv. 28, appendix. 5 Sa-g. and Raiole, 450. 3 Term Rep. 388. 2 Bac. Abr. tit. Distress. 1 Burr. 590. 2 Str. 281. 3 Cranch, 496. 1 Cond. Rep. 607. 4 Cranch, A'il. 2 Cond. Rep. 157. Co. Litt. Ill, 112. 5 Term Rep. 175. 4 Bl. Comm. 70, 268, 362. 14 Johns.. Rep. 268. 2 Bro. Civ, and Adm. Law, 110. Bac. Abr. tit. Piracy, Pardon. Fitzh. JVat. Brev. 114. 2 Gallis. Rep. 408, 409. Mr. Taney, contra, cited: 4 Bl. Comm. 71. 2 Bro. Civ. and Adm. Law, 462, 113, 434. Hall's Adm. Pract. 62. 3 Hall's Law Journ. 571 . 2 Bro. Civ. and Adm. Law, 435. Hall's Adm. Pract. 60, 70. Mr. Justice Johnson delivered the opinion of the court. The record in this cause sets out the libel, the demurrer, and the decision of the court upon the demurrer. So far the case is consistent and intelligible ; but the record contains, also, a petition for the sale of certain attached goods, a survey of the goods, and a decision against the 162 FEBRUARY TERM, 1825. 192 [Manro v. Almeida.] petition, but no exhibition of the process or mode by which these goods came into the custody of the marshal. As the decision of the court sustains the demurrer, we are left at a loss, upon the record, to discover how process of attachment came to be issued. To obtain such a process is the very prayer of th^e libel, and the decision of the court is against that prayer. All the solution that the case presents, is to be found in the argument of counsel, and their mutual admissions. The clerk, it seems, issued the attachment as a process of course, and the respondent, instead of moving to quash it for irregularity, appeared to the libel, filed his demurrer, and was content to let the regularity of the attachment abide the decision of the court upon the general ques- tions raised upon the libel. The court appears to have treated the subject under the same views, since the decree of the district court, after dismissing the libel, contains an order, " that the goods, chattels, and credits attached, be restored, with costs ;" which decree was affirmed, pro forma, in the circuit court. *Upon this state of the case the cause has been urged, as one r^iqo bringing up to this court a question on the i-egularity of the ^ process issued by the clerk; and if the process so issued, and the return of the marshal upon it, and a motion to quash the writ had been set out on the record, there is no question that the appeal would have brought up the whole subject. But as the record is deficient in these particulars, we do not perceive how we can take notice of that part of the judge's decision which orders the restoration of the goods attached. We must, therefore, confine ourselves to the questions raised on the libel and demurrer. The immediate question presented is, whether the court below erred in refusing to the libellant the process of attachment on the case made out in his libel ? And this resolves itself into two questions ; the first arising on the right, the second on the remedy of the case. It must be here noticed, that the legality of the seizure made by Almeida is not now in ques- tion ; that question may be undergoing adjudication, for aught we know, in a court of competent jurisdiction, and we are not to be under- stood as prejudging the influence which the decision of a foreign tribu- nal may have upon the final adjudication between these parties. The defendant has demurred under protest, and the only question now is, whether the libellant has made out, prima facie, a good cause for relief in the admiralty. The ground of complaint is a maritime tort, the violent seizure on the ocean of a sum of money, the property of the libellants. That the libellant would have been entitled to admiralty process against the pro- perty, had it been brought within the reach of our process, no one has questioned. The only doubt on this part of the subject is, whether the remedy in personam, for which this is a substitute, (or, more properly, the form of instituting it,) can be pursued in the admiralty. On this point we consider it now too late to express a doubt. This court has entertained such suits too often, without hesitation, to permit the right now to be questioned. Such was the case of Maley v. Shat- tack, 3 Crunch, 458, 1 Cand. Rep. 597. Such is the principle recognised 163 193 SUPREME COURT, [Manro v, Almeida.] in Murray v. The Charming Betsey, 2 Crunch, 483, where the court decrees damages against the ' libellant. Such, also, was the principle in the case of the Apollon, 9 Wheat. Rep. 362, 5 Cond. Rep. 612, in which the libel was directly in personam, and damages decreed. We consider that question, therefore, as not to be stirred. The remedy by attachment, also, to compel appearance, has very respectable support in precedent. In the district court 'of South Caro- lina, during the administration of a very able admiralty judge, it was resorted to habitually, both in cases of tort and contract. (Bee*s Mm. J 1 Cond. Rep. 130, is the only one we know ofc in which any view of this question appears to have been presented to this court. And there, undoubtedly, the exception taken was not to the issuing of the attachment in the abstract, but to the issuing of it against a prize made from a friendly power, before the property had been devested by condemnation. The response of the court on this point would seem to imply something more, since their decision is reported to have been, " that whatever might originally have been the irregularity in attach- ing the Industry and cargo, it is completely obviated, since the captors had a power to sell the prize, and by their own agreement they have consented that the piroceeds of the sale should abide the present suit." Still there is nothing to be deduced from this case which can affect the question now under consideration. The point, as stated to have been presented to the court in argument, was certainly one of which a captor could not avail himself, and the original owner of the prize was not in court. And although the court would appear to have had the present question in view when disposing of that point, yet it is only noticed arguendo, as they pass on to take a ground which precluded the necessity of considering the point made in argument. We, therefore, consider this altogether a new question before this court. ■ The jurisdiction of the admiralty rests upon the grant in the consti- tution, and the terms in which that grant is extended to the respective courts of the United States. The forms and modes of proceeding in causes of admiralty and maritime jurisdiction, are prescribed to the courts by the second section of the process act of 1792. In the process act of 1789, the language made use of in prescribing those forms im- plied a general reference to the practice of the civil law ; but in the act of 1792, the terms employed are, " according to the principles, rules, and usages, which belong to courts of admiralty, as contradistinguished from courts of common law." By the laws of Maryland, the right of attachment may be asserted in the courts of common law, and the court below appears to have con- sidered the libel in this instance as an attempt by the libellant to avail himself in the admiralty of the common law remedy by attachment. The forms of the libel must determine this question, and there we find the prayer expressed in these words: "To the end, therefore, that your libellants may obtain speedy relief in the premises, they pray process of attachment against the said goods, and chattels, and credits of the said ,T. A., which may be found within the jurisdiction of this honourable court, and the process thereof, according to the just course of the 164 FEBRUARY TERM, 1825. 195 [Manro v. Almeida.] admiralty, *and that monition viis et modis be made according- r^iqc ly," &c., " to compel an answer," &c. ; and " finally, that the L said goods, and chattels, and credits, when duly attached, may, by a decree of this honourable court, be condemned to answer the pre- mises." There can be little doubt, as well from the objects embraced in this prayer, as from the argument, that the identity of the remedy in the common law and admiralty courts, appears to have been in the mind of the party libellant. Yet this was no ground for the total refusal of the relief prayed for ; the writ should have been granted, and the ques- tion as to ulterior proceedings under it retained, to be disposed of after- wards. The prayer of the libellant contemplates two purposes ; first, to compel appearance ; secondly, to condemn for satisfaction. Now, although the latter may be only incidental, and not the primary object of the attachment ; yet, if it be legal for the purpose of compelling ap- pearance, the demand for the one purpose was no ground for refusing it for the other. In giving a construction to the act of 1792, it is unavoidable, that we should consider the admiralty practice there alluded to, as the admi- ralty practice of our own country, as grafted upon the British practice ; it is known to have had some peculiarities which have been incorpo- rated into the jurisprudence of the United States. We had then been sixteen years an independent people, and had administered the admi- ralty jurisdiction as well in admiralty courts of the states, as in those of the general government ; and if, in fact, a change had taken place in the practice of the two countries, that of our own certainly must claim precedence. On the subject particularly under consideration, it appears from an English writer, that the practice of issuing attachments had been dis- continued in the English courts of admiralty, while in some of our own courts it was still in use, perhaps not so generally as to sanction our sustaining it altogether on authority, were we not of opinion that it has the highest sanction also, as well in principle as convenience. It is a mistake, to consider the use of this process in the admiralty as borrowed from, or in imitation of, the foreign attachment under the custom of London. Its origin is to be found in the remotest history, as well of the civil as the common law. In the simplicity of the remote ages of the civil law, the plaintiff himself arrested the defendant, and brought him before the pretor. But as the sanctuary of his own habitation was not to be violated, if he came not abroad, a summons was attached to his door-posts citing him to appear and answ^er. Hence our monition viis et modis. If he still proved recusant after three times repeating this solemn notice, r#igg a decree *issued to attach his goods ; and thus, this process of '■ the admiralty had a common origin with the common law mode of, instituting a suit by summons and distress infinite. If the defendant obeyed, he could only appear upon giving bail ; and thus again the analogy was kept up with the appearance at common law, which was synonymous with filing special bail. Thus, this process has the clearest sanction in the practice of the civil law, and during the three years that the admiralty courts of these states were referred to the practice of the civil law for their "forms and 165 196 SUPRiyME COURT. [Manro v. Almeida.] modes of proceeding," there could have been no question that this pro- cess was legalized. Nor is there any thing in the different phraseology adopted in the act of 1792, that could preclude its use. That it is agreeable to the " principles, rules and usages, which belong to courts of admiralty," is established, not only by its being resorted to in one at least of the courts of the United States, but by the explicit declaration of a book of respectable authority, and remote origin, in which it is laid ~ down thus : " if the defendant has concealed himself, or has absconded from the kingdom, so that he cannot be arrested, if he have any goods, merchandise, ship or vessel, on the sea, or within the ebb or flow of the sea, and within the jurisdiction of the lord high admiral, a warrant is to be impetrated to this effect, viz., to attach such goods or ship of D, the defendant, in whose hands soever they maybe; and to cite the said D specially as th^ owner, and all others who claim any right or title to them, to be and appear on a certain day to answer unto P in a civil and maritime cause." Gierke's Praxis, by Hall, part 2, tit. 28. I have cited the passage at length, in order to facilitate a reference which must be made to it on several other points in this opinion. And, 1. It appears from this authority, that where a defendant has concealed himself, or absconded from the kingdom, this process may issue. In this particular, the averments in the libel conform literally to the au- thority. 2. It is required that the goods and effects to be attached should be within the jurisdiction of the admiralty. To this the libel conforms also, for the prayer is for process against " the said goods, and chattels, and credits, of the said J. A. which may be found within the jurisdic- tion of the court, and the process thereof, according to the just course of the admiralty." 3. It is required, that the attachment issue against any goods, mer- chandise, ship or vessel, on the sea, &c. The only deviation in this particular is, that the process prayed for is against the credits, as well as the goods and chattels, &c., within the jurisdiction of the court. ^iq„-| On this part of the prayer, the question is raised, as to what -■ goods *and chattels the attachment may issue, where situated, and whether against credits and effects in the hands of third persons, but not tangible or accessible to the marshal. This question arises from a comparison of the tit. 32, p. 70, Clerke's Praxis by Hall, with the 28th before cited. The language of the 28th would seem to confine the operation of the attachment to goods and chattels " on the sea, or within the ebb and flow of the sea." But, by reference to the 32d, it appears that it is consistent with the practice of the admiralty also, in cases where there is no property which the officer can attach by manucaption, to proceed to attach goods or credits in the hands of third persons, by means of the simple service of a notice. To all the questions which may be supposed to arise on this part of the case, we give one general answer, viz., that as goods and credits in the hands of a third person, wherever situated, may be attached by notice, there cannot be a reason assigned why the goods themselves, if accessible, should not be actually attached; and although it is very clear that the process of attaching by notice seems given as the alter- native where the officer cannot have access to the goods themselves, 166 FEBRUARY TERM, 1825. 197 [Monro v. Almeida.] yet all this may be confided to the discretion of the judge who orders the process ; and if the party libellant was entitled to the process at all, the court was not justified in refusing it altogether. 4. The libel prays that the articles attached may be condemned to answer the demand of the libellant. On this subject it is very clear that the primary object of the attach- ment is to obtain an appearance. But it is equally clear that, upon the third default in personal actions, the goods arrested were estreated, and, after a year, finally abandoned to the plaintiff. But, as this pro- ceeding was too dilatory for the movements of the admiralty, the con- demnation and sale, after proof of the cause of action, was substituted for it. There was, therefore, nothing incorrect in uniting the prayer for condemnation with the acknowledged end of forcing an appearance, and, if there had been, it was no ground for refusing relief as far as the claim was sustainable in the admiralty. It may be remarked here that the case is somewhat embarrassed by the state of the pleadings, inasmuch as, after appearance, it is hardly conceivable on what ground the attachment could be granted. It would seem that the defendant, for some cause, had been permitted by the court to appear and plead without giving bail to the action. There are such causes known to the practice of the civil law, and we are com- pelled to take the case as we find it. It has been further argued, that as the libel alleges the trespass complained of to have been piratically done, the civil remedy merges *in the crime. But this, we think, clearly cannot be maintained, r^iqo Whatever may have been the barbarous doctrines of antiquity ^ about converting goods piratically taken into droits of the admiralty, the day has long gone by since it gave way to a more rational rule, and the party dispossessed was sustained in his remedy to reclaim the property as not devested by piratical capture. It is hardly necessary to quote authority for this doctrine, but it will be found to have been the rule of justice as early as the reports of Croke and Ventris. If the party may recover his property, why not recover the value of it from any goods of the ofiender within reach of the admiralty? We think the doctrine of merger altogether inapplicable to the case. Even at common law, it was confined to felonies ; and piracy was no felony at common law. On the question, whether the property to be attached should have been specified in the libel or process, we have before remarked that, as neither the process nor return is before us, we can express no opinion respecting its form. The libel contains no specification of the articles to be attached, and, if this were fatal, the demurrer might have been sustained. But, pursuing the analogy with the civil law process to compel appearance, we can see no reason for requiring such a specifica- tion. There is no reason to conclude that the decree for attachment issued against the recusant at the civil law was otherwise than general. And although the other course may be pursued, and might be most convenient and satisfactory, yet we know of no imperative rule upon the subject. The authority on which the libel was filed sanctions the general language in which it is couched. The last point made in argument was, whether the process of attach- ment could issue without an order of the judge. But here, again, we 167 198 SUPREME COURT. [Manro v. Almeida.] have to remark that we can take no notice of the circumstances undei which the writ actually did issue. And, looking to the libel, it appears to have been its express object to obtain such an order from the court. That the process of attachment at the civil law did not issue of course, is very well known. It was obtained for contumacy after monition ; and analogy, as well as public convenience, would seem to render the judge's order necessary. Yet we see no objection to pursuing the prayer of the libel, and issuing it simultaneously with the monition ; the purposes of justice would seem to require that course. Upon the whole, we are of opinion that, for a maritime trespass, even though it savours of piracy, the person injured may have his action in personam, and compel appearance by the process of attachment on the goods of the trespasser, according to the forms of the civil law, as en- grafted upon the admiralty practice. And we think it indispensable to *1991 * purposes of justice,and thedue exercise of the admiraltyjuris- -l diction, that the remedy should be applied, even in cases where the same goods may have been attachable under the process of foreign attachment issuing from the common law courts. For it will necessarily follow, in all such cases, that a question peculiarly of admiralty cogni- sance will be brought to be examined before a tribunal not competent to exercise original admiralty jurisdiction, and that as a primary, not an incidental question ; since the whole proceeding will have for its object to determine whether a maritime trespass has been committed, and then to apply the remedy. Judgment reversed, and the cause remanded for further proceedings. Admiralty jurisdiction. See notes to 1 Cond. Rep. 133; also, notes to The Steamboat Thomas Jefferson, ante, page 174. The Gran Para. The Consul-General of Portugal, Libellant. 10 Wheaton's Reports, 497. WHERE the court of admiralty has parted with the possession of the property, upon bail or stipulation, and it is necessary, for the pur- poses of justice, to retake the property into the custody of the court, the proper process against any peVson not a party to the. stipulation, but who is alleged to have the actual or constructive possession, is a monition, and not an execution, in the first instance. »200] *The Palmyra. Depau, Claimant. 10 Wheaton's Reports, 502. . NO appeal lies from a decree of restitution, with costs and damages, in the circuit court ; the report of the commissioners appointed to as- certain the damages not having been acted on by the court when the appeal was taken. Such a decree is not a final decree. 168 FEBRUARY TERM, 1826. Hon. JOHN MARSHALL, Chief Justice. Hon. BUSHROD WASHINGTON, Associate Justice. Hon. WILLIAM JOHNSON, Associate Justice. Hon. GABRIEL DUVALL, Associate Justice. Hon. JOSEPH STORY, Associate Justice. Hon. smith THOMPSON, Associate Justice. William Wirt, Esq., Attorney-General. The Marianna Flora. The Vice-Consul of Portugal, Claimant. 11 Wheaton'a Reports, 1. In admiralty proceedings, amendments are made in the appellate court, not only as to form, but as to matter of substance, as by the filing a new counts to the libel ; the parties being per- mitted, whenever public justice and the substantial merits require it, to introduce new alle- gations and new proofs ; nan allegata allegare, et non probata probare. If the amendment is made in the circuit court, the cause is heard and adjudicated by that court, and (upon appeal) by this court on the new allegation ; but if the amendment is al- lowed by this court, the cause is remanded to the circuit court, with directions to permit the amendment to be made. [See note at the end of the case.] Rights and duties of armed, and other ships, navigating the ocean in time of peace. An attack made upon a vessel of the United States, by an armed vessel, with the avowed in- tention of repelling the approach of the former, or of crippling or destroying her, upon a mistaken supposition that she was a piratical cruiser, and without a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property, is not a piratical aggression under the act of the 3d of March, 1819, c. 75. "'Nor is an armed vessel captured under such circumstances, liable to confiscation as rj^n/^n for a hostile aggression under the general law of nations. L ■^■^ The act extends to foreign vessels committing a piratical aggression ; and whatever responsi- bility the nation may incur towards foreign stales, by executing its provisions, the tribunals of the United States are bound to carry them into effect. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war i for they are hostes humani generis. American ships offending against our own laws, may be seized upon the ocean, and foreign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. But, in such cases the party seizes at bis peril, and is liable to costs and damages if he fails to establish the forfeiture. Ships of war sailing under the authority of their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real characters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. No vessel is bound to await the approach of armed ships under such circumstances ; but such Vol. VI.— 22 P 169 202 SUPREME COURT. [The Marianna Flora.] vessel cannot lawfully prevent their approach b; the ase of force, upon the mere suspicion of danger. Where an aggression vsras committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt front costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offending vessel How far the act of the master binds the owner of the vessel. APPEAL from the circuit court of Massachusetts. The original libel filed in the district court against the Portuguese ship Marianna Flora, and cargo, was for an alleged piratical aggression attempted or committed by the ship on the United States armed schooner Alligator, lieutenant Stockton commander, against the act of congress of the 3d of March, 1819, ch. 75, entitled, " an act to protect the commerce of the United States, and punish the crime of piracy." Upon the hearing of the cause in the district court, the judge pro- nounced an interlocutory sentence of restitution, and subsequently pro- nounced a further decree for damages, amounting to nineteen thousand six hundred and seventy-five dollars, for the act of sending in the ship for adjudication, and the consequent detention. An appeal was taken by the libellants from both decrees to the circuit court ; and, afterwards, before the hearing of the appeal, by request of the government of the United States, and with the consent of the libellants, the ship and cargo were restored to the claimants, and further proceedings respecting the same were abandoned. The only question, therefore, litigated in the circuit court, was upon the point of damages, and, ultimately, a decree was there pronounced reversing the decree for damages ; and this con- stituted the matter of the present appeal. Pending the proceedings in the circuit court, leave was granted to the *90^1 *'ibeHants to file a new count or allegation, in which the aggres- , J sion was stated to be hostile, and with intent to sink and destroy the Alligator, and in violation of the law of nations. The facts which were given in evidence, and relied on to support the allegations in the libel, were substantially as follows : on the morn- ing of the 4th of November, 1821, the Alligator and the Marianna Flora- were mutually descried by each- other on the ocean, at the dis- tance of about nine miles, the Alligator being on a cruise against pirates and slave-traders, under the instructions of the president, and the Por- tuguese vessel being bound on a voyage from Bahia to Lisbon, with a valuable cargo on board. The two vessels were then steering on courses nearly at right angles with each other, the Marianna Flora being under the lee bow of the Alligator. A squall soon afterwards came on, which occasioned an obscuration for some time. Upon the clearing up of the weather, it appeared that the Marianna Flora had crossed the point of intersection of the courses of the two vessels, and was about four miles distant on the weather bow of the Alligator. Soon afterwards she shortened sail and hove to, having at this time a vane or flag on her mast, somewhat below the head, which, together with her other ma- ncEuvres, induced lieutenant Stockton to suppose she was in distress or wished for information. Accordingly, he deemed it his duty, upon this apparent invitation, to approach her, and immediately changed his course towards her. When the Alligator was within lonar-shot of the Portuguese ship, the latter fired a cannon-shot alicad of the Alligator 170 / FEBRUARY TERM, 1826. 303 [The Marianna Flora.] and exhibited the appearance and equipments of an armed vessel. Lieutenant Stockton immediately hoisted the United States' flag and pendant. The Marianna Flora then fired two more guns, one loaded with.grape, which fell short, the other loaded with round shot, which passed over and beyond the Alligator. This conduct induced lieutenant Stockton to believe the ship to be a piratical or a slave vessel, and he directed his own guns to be fired in return ; but as they were only carronades, they did not reach her. The Alligator continued to ap- proach, and the Marianna Flora continued firing at her at times, until she came within musket-shot, and then a broadside from the Alligator produced such intimidation that the Portuguese ship almost imme- diately ceased firing. At that time, and not before, the Portuguese ship hoisted her national flag. Lieutenant Stockton ordered the ship to surrender, and send her boat on board, which was accordingly done. He demanded an explanation ; and the statement made to him by the Portuguese master, and other officers, was, that they did not know him to be an American ship of war, but took him to be a piratical cruiser. ■ Under these circumstances, without much examination of the papers, or the voyage of the *ship, lieutenant Stockton determined to r#2n4 send her into the United States, on account of this, which he L deemed a piratical aggression. She was accordingly manned, and sent, with her officers and crew, under the orders of lieutenant Abbot, into Boston. Mr. J. Knapp and Mr. Emmett, for the appellants, cited : 2 £zuni, 203, 204, 205, 207, 212, s. 8, 351, 602, c. 3, s. 3. 1 Code des Prises, par le Beau, 223. Puffend. 1. 2, c. 3, s. 8. 3 Ruther. 493. 6 EasCs Rep. 202. 1 Ruther. 372, 377, 398, 180. Puffend. 1. 2, c. 5, s. 6, 8. The George, 1 Mason's Rep. 24. 9 Wheat. Rep. 374. 5 Cond. Rep. 61. 2 Cranch's Rep. 64, 170. 3 Crunch's Rep. 458. fVheat. Capt. 313. Appx. Croke. Reply to Schlegal, 62. 1 Dall. Rep. 183. The Anna Maria, 2 Wheat. Rep. 333. 4 Cond. Rep. 139. 3 Bro. Civ. and Mm. Law, 310, 463. 5 Rob. 40. The St. Juan Baptista, 4 Rob. 58. The Zee Star, 3 Dall. Rep. 333. 3 Wheat. Rep. appendix, 13. 3 Woodes. 140. Bynk. Q. J. Pub., Duponceau's transl.- 127, note. 1 Sir L. Jenkins's Life, Spc. 91. 5 Wheat. Rep. 161. 4 Cond. Rep. 619. 3 Wheat. Rep. 641. 4 Cond. Rep. 352. United States v. Smith, 5 Wheat. Rep. 153. 4 Cond. Rep. 619. United States v. The Pirates, 5 Wheat. Rep. 184. 4 Cond. Rep. 633. United States v. Palmer, 3 Wheat. Rep. 610. 4 Cond. Rep. 353. United States v. Glintock, 5 Wheat. Rep. 144. 4 Cond. Rep. 614. The Apollon, 9 Wheat. Rep. 373. 5 Cond. Rep. 612. The St. Juan Baptista, 5 Rob. Rep. 36. The Louis, 3 Dods. Rep. 210. The Anna Maria, 3 Wheat. Rep. 337. 4 Cond. Rep. 139. Stewart's Vice Adm. Rep. 301. 13 Johns. Rep. 141, 561. 3 Dods. Rep. 48, 53. 3 Cranch's Rep. 170. 1 Cond. Rep. 378: 3 Wheat. Rep. 346. 4 Cond. Rep. 344. 3 Cranch's Rep. 135. 1 Cmd. Rep. 358. 3 Mason's Rep. 409, 439. Mr. Blake and Mr. Webster, for the respondents, cited : Puffendorf, 1. 3, C.M3, s. 14. Grotius, De J. B. and P. lib. 11, c. 1, s. 3. Puffen- dorf, 1. 3, c. 5, s. 6. Alhericus GentiUs, Hispanicce Advocationis, c. 37. The Fox, Edw. Adm. Rep. 311. 3 Wheat. Rep. 435. 4 Cond. Rep. 386. Locke v. United States, 7 Cranch's Rep. 348. 3 Cond. Rep. 531. Gorier Maritimo, 1 Rob. 387. 3 Cranch's Rep. 116. 1 Cond. Rep. 358. 171 204 SUPREME COURT. [The Marianna Flora.] 2 Crunch's Rep. 169. 1 Cond. Rep. 378. 3 Crunch's Rep. 458. 1 Cond Rep. 597. The Louis, 2 Dods. Rep. 210, 264. The Acteon, 2 Dods. Rep. 48. Mr. Justice Story delivered the opinion of the court; and, after stating the pleadings, proceeded as follows : An objection, which is preliminary in its nature, has been taken to the admissibility of this new count to the libel, filed in the circuit court, upon the ground, that the original subject-matter was exclusively *2051 *cogiiisable in the district court ; and to allow this amendment -■ would be to institute an original, and not an appellate inquiry in the circuit court. But the objection itself is founded on a mistaken view of the rights and authorities of appellate courts of admiralty. It is the common usage, and admitted doctrine of such courts, to permit the parties, upon the appeal, to introduce new allegations, and new proofs, non allegata allegare, et non probata probare. The courts of the United States, in the exercise of appellate jurisdiction in admiralty causes, are by law authorized to proceed according to the course of proceedings in admiralty courts. It has been the constant habit of the circuit courts to allow amendments of this nature, in cases where public justice, and the substantial merits, required them; and this practice has not only been incidentally sanctioned in this court ; but on various occasions, in the exercise of its own final appellate jurisdic- tion, it has remanded causes to the circuit court, with directions to allow new counts to be filed. We may, then, dismiss any farthei* dis- cussion of this objection, and proceed to' the main questions in contro- versy. [Here the learned judge recapitulated the facts of the case as they have been before stated.] In considering the circumstances, the court has no difficulty in de- ciding, that this is not a case of piratical aggression, in the sense of the act of congress. The Portuguese ship, though armed, was so for a purely defensive mercantile purpose. She was bound homewards with a valuable cargo on board, and could have no motive to engage in any piratical act or enterprise.- It is true, that she made a medi- tated, and, in a sense, a hostile attack, upon the Alligator, with the avowed intention of repelling her approach, or of crippling or destroy- ing her. But, there is no reason to doubt, that this attack was not made with a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property. It was done upon a mistake of the facts, under the notion of just self-defence, against what the master very imprudently deemed a piratical cruiser. The combat was, therefore, a combat on mutual misapprehension; and it ended without any of those calamitous consequences to life which might have brought very painful considerations before the court. . It has, indeed, been argued at the bar, that even if this attack had been a piratical aggression, it would not have justified the capture and sending in of the ship for adjudication, because foreign ships are not to be governed by our municipal regulations. But the act of congress is decisive on this subject. It not only authorizes a capture, but a con- demnation in our courts, for such aggressions ; and whatever may be the responsibility incurred by the nation 1o foreign powers, in execut- 172 - FEBRUARY TERM, 1826. 206 _ [The Marianna Flora.] ting *such laws, there can be no doubt that courts of justice are r^onf: bound to obey and administer them. L The other count, which seeks condemnation on the ground of an as- serted hostile aggression, admits of a similar answer. It proceeds upon the principle, that, for gross violations of the law of nations on the high seas, the penalty of confiscation may be properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever may be the case, where a gross, fraudulent, and unprovoked attack, is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults, or common negligence. It may be just, in such cases, to award to the injured party full com- pensation for his actual loss and damage ; but the infliction of any for- feiture beyond this does not seem to be pressed by any considerations derived from public law. Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation ; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And a piratical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law Of nations. But every hostile attack, in a time of peace, is not necessarily pirati- cal. It may be by mistake, or in necessary self-defence, or to repel a supposed meditated attack by pirates. It may be justifiable, and then no blame attaches to the act ; or, it may be without just excuse, and then it carri-es responsibility in damages. If it proceed farther, if it be an attack from revenge and malignity, from gross abuse of power, and a settled purpose of mischief, it then assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer. . These latter ingredients are entirely wanting in the case before us ; and, therefore, if the question of forfeiture were now in judgment, we should have no doubt, either upon the act of congress, or the general law, that it ought not to be enforced". But, in the present posture of this cause, the libellants are no longer plaintiffs. The claimants interpose for damages in their turn, and have assumed the character of actors. They contend that they are entitled to damages, first, because the conduct of lieutenant Stockton, in the approach and seizure of the Marianna Flora, was unjustifiable ; and, *secondly, because, at all events, the subsequent sending her in r^ony for adjudication was without any reasonable cause. '- In considering these points, it is necessary to ascertain what are tne rights and duties of armed, and other ships, navigating the ocean m time of peace. It is admitted, that the right of visitation and search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occasions. It is true, that it has been held in the courts of this country, that Americajn ships, offending- against our laws> and foreign ships, in like manner, p2 173 207 SUPREME COURT. [The Marianna Flora.] offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into our ports for adjudi- cation. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such cases, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages. Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all ; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption ; but, whatever may be that business, she is boun(J to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, aic utere tuo, ut non alienum Isedas. It has been argued, that no ship has a right to approach another at sea; ajid that every ship has a right to draw round her a line of juris- diction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. This doctrine appears to us novel, and is not supported by any au- thority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognised, and we see no reason for admitting its exist- ence. Merchant-ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure infor- mation, or to ascertain the character of strangers ; and, hitherto, there 908*1 *^^^ never been supposed in such conduct any breach of the -■ customary observances, or of the strictest principles of the law of nations. In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertaining their real charac- ters. Such a right seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. She has a right to consult her own safety ; but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the pru- dence or fears of her officers ; either as to delay, or the progress or course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things 174 FEBRUARY TERM, 1826. 208 [The Marianna Flora.] carries with it very different obligations and responsibilities from those which belong to public war, and is not to be confounded with it. The first inquiry, then, is, whether the conduct of lieutenant Stock- ton was under all the circumstances preceding and attending the com- bat, justifiable. There is no pretence to say that he committed the first aggression. That, beyond all question, was on the part of the Marianna Flora; and her firing was persisted in after the Alligator had hoisted her national flag, and, of course, held out a signal of her real pacific character. What, then, is the excuse for this hostile attack ? Was it occasioned by any default or misconduct on the part of the Alligator ? It is said that the Alligator had no right to approach the Marianna Flora, and that the mere fact of approach authorized the attack. This is what the court feels itself bound to deny. Lieutenant Stockton, with a view to the objects of his cruise, had just as unquestionable a right to use the ocean, as the Portuguese ship had ; and his right of approach was just as perfect as her right of flight. But in point of fact, lieuten- nt Stockton's approach was not from mere motives of public service, ut was occasioned by the acts of the Marianna Flora. He was steering on a course which must, in a short time, have carried him far away from her. She lay-to, and showed a signal ordinarily indicative of dis- tress. It was so understood, and from motives of humanity, the course *was changed, in order to afford the necessary relief. There is r^ono not a pretence in the whole evidence that the lying-to was not '- voluntary, and was not an invitation of some sort. The whole reason- ing on the part of the claimants is, that it was for the purpose of nnfeet- ing a supposed enemy by daylight, and in Jhis way to avoid the diffi- culties of an engagement in the night. But how was this to be known on board of the Alligator 1 How was it to be known that she was a Portuguese ship, or that she took the Alligator for a pirate, or that her object in laying-to was a defensive operation? When the vessels were wfithin reach of each other, the first salutation from the ship was a shot fired ahead, and, at the same time, no national flag appeared at the mast-head. The ship was armed, appeared full of men, and, from her manoeuvres, almost necessarily led to the supposition that her previous conduct was a decoy, and that she was either a piratical vessel, or at least in possession of pirates. Under such circumstances, with hostili- ties already proclaimed, lieutenant Stockton was certainly not bound to retreat ; and, upon his advance, other gUns, loaded with shot, were fired, for the express purpose of destruction. It was, then, a case of .open, meditated hostility, and this, too, without any national flag dis- played by the Portuguese ship which might tend to correct the error, for she never hoisted, her flag until the surrender. What, then, was lieutenant Stockton's duty ? In our view it was plain ; it was to op- pose force to force, to attack and to subdue the vessel thus prosecuting unauthorized warfare upon his schooner and crew. In taking, there- fore, the readiest means to accomplish the object, he acted, in our opinion, with entire legal propriety. He was not bound to fly, or to wait until he was crippled. His was not a case of mere remote danger, but of imminent, pressjng and present danger. He had the flag of his country to maintain, and the rights of his cruiser to vindicate. To have hesitated in what his duty to his government called for on such an occasion, would have been to betray (what no honourable officer 175 209 SUPREME COURT. [The Marianna Flora.] could be supposed to indulge) an indifference to its dignity and sove reignty. But it is argued that lieutenant Stockton was bound to have affirmed his national flag by an appropriate gun; that this is a customary ob- servance at sea, and is universally understood as indispensable to pre- vent mistakes and misadventures ; and that the omission was such a default on his part, as places him in delicto as to all the subsequent transactions. This imputation certainly comes with no extraordinary grace from the party by whom it is now asserted. If such an observ- ance be usual and necessary, why was it not complied with on the part of the Marianna Flora? Her commander asserts that by the laws of his own country, as well as those of France and Spain, this is *i2101 *^ known and positive obligation on all armed vessels, which J they are not at liberty to disregard. Upon what ground, then, can he claini an exemption from performing it ? Upon what ground can he set up as a default in another, that which he has wholly omitted to do on his own part? His own duty was clear, and pointed out; and yet he makes that a matter of complaint against the other side, which was confessedly a primary default in himself. He not only did not hoist or affirm his flag in the first instance, but repeatedly fired at his adversary with hostile intentions, without exhibiting his own na- tional character at all. He left, therefore, according to his own view of the law, his own duty unperformed, and fortified, as against himself, the very inference that his ship might properly be deemed, under such circumstances, a piratical cruiser. But we are not disposed tg admit that there exists any such universal rule or obligation of an affirming gun as has been suggested at the bar. It may be the law of the maritime states of the European continent already alluded to, founded in their own usages or positive regulations. But it does not hence follow that it is binding upon all other nations. It was admitted, at the argument, that the English practice is other- wise ; and surely, as a maritime power, England deserves to be listened to with as much respect, on such a point, as any other nation. It was justly inferred that the practice of America is conformable to that of England; and the absence of any counter proof on the record is almost of itself decisive. Such, however, as the practice is, even among the continental nations of Europe, it is a practice adopted with reference to a state of war, rather than peace. It may be a useful precaution to prevent conflicts between neutrals, and allies, and belligerents, and even between armed ships of the same nation. But the very necessity of the precaution in time of war arises from circumstances which do not ordinarily occur in time of general peace. Assuming, therefore, that the ceremony might be salutary and proper in periods of war, and suit- able to its exigencies, it by no means follows that it is justly to be insisted on at the peril of costs and damages in peace. In any view, therefore, we do not think this omission can avail the claimants. Again: It is argued that there is a general obligation upon armed ships, in exercising the right of visitation and search, to keep at a dis- tance, out of cannon-shot, and to demean themselves in such a manner as not to endanger neutrals. And this objection, it is added, has been specially provided for and enforced by the stipulations of many of our own treaties with foreign powers. It might be a decisive answer to this 176 FEBRUARY TERM, 1826. 210 [The Marianna Flora.] argument, that, here, no right of visitation and search was attempted to be exercised. Lieutenant Stockton did not claim to be a belligerent, ^entitled to search neutrals on the ocean. His commission was p^o'i i for other objects. He did not approach or subdue the Marianna L -^^^ Flora, in order to compel her to submit to his search, but with other motives. He took possession of her, not because she resisted the right of search, but because she attacked him in a hostile manner, without any reasonable cause or provocation. Doubtless, the obligation of treaties is to be observed with entire good faith and scrupulous care. But, stipulations in treaties having sole reference to the exercise of the rights of belligerents in time of war, cannot, upon any reasonable principles of construction, be applied to govern cases exclusively of another nature, and belonging to a state of peace; Another consideration, quite sufficient to establish that such stipulations cannot be applied in aid of the present case, is, that what- ever may be our duties to other nations, we have no such treaty sub- sisting with Portugal. It will scarcely be pretended, that we are bound to Portugal by stipulations to which she is no party, and by which she incurs no correspondent obligation. Upon the whole, we are of opinion, that the conduct of lieutenant Stockton, in approaching, and, ultimately, in subduing the Marianna Flora, was entirely justifiable. The first wrong was done by her, and his own subsequent acts were a just defence and vindication of the rights and honour of his country. The next inquiry is, whether the act of sending in the Marianna Flora for adjudication, was, under all the circumstances, unjustifiable, so as to carry with it responsibility in damages. It is argued, that, upon examination of the ship's papers, the crew, and the cairgo, it must clearly have appeared, that the ship was a merchant-ship bound on a lawful voyage, and not a piratical cruiser. This state of the case must be admitted to have been apparent. But the real difficulty is of another sort. Her papers, and cargo, and destination, could give no information of the nature of the attack made upon the Alligator. However hostile, malignant, or even piratical, the aggression might be, the papers could shed no light upon the subject. The owners of the cargo, and the owners of the ship, (so far at least as their duties and responsibilities were not bound up by the acts of the master, as their agent) might be innocent ; the voyage might be of a purely mercantile character, and yet, acts of aggression might be com- mitted, which might bring the case completely within the a ct'of congress, or of the general law of nations, as a gross and violent injury calling for ample redress. The real duty imposed upon lieutenant Stockton was, not to examine the papers, unless so far as they might explain doubtful circumstances, but to ascertain the nature, object, and intent of the *attack upon his vessel. He was bound to exercise an tj^oiq honest and fair discretion on the subject, and to obtain such ex- L planations as might guide his judgment. What was the excuse oflfered for the attack upon him 1 It was not that the guns were fired by mistake or accident. They were admitted to have been by authority and design. They were fired after his own flag was displayed, and with the express intention of disabling the vessel and destroying the crew. The only excuse offered for this unjustifiable act was, that the commander enter- VoL. VI.— 23 177 212 SUPREME COURT. [The Marianna Flora.] tained a fear that the Alligator was a pirate. But, such a fear, unau- thorized by any acts on the other side, was no excuse for a wrong which might have led to the most fatal consequences. If the Alligator had been seriously injured, or any of her crew had been killed, no doubt could exist, that, under such circumstances, the ship ought to have been sent in for adjudication, to enforce redress, and, also, to ad- minister, if necessary, punishment. The attack was not the less inex- cusable because the consequences were not as injurious as the master intended. It is a different thing to sit in judgment upon this case, after full legal investigations, aided by the regular evidence of all parties, and to draw conclusions at sea, with very imperfect means of ascertaining facts and principles, which ought to direct the judgment. It would be a harsh judgment to declare, that an officer charged with high and responsible duties on the part of his government, should exercise the discretion intrusted to him at the peril of damages, because a court of law might ultimately decide, that he might well have exercised that discretion another way. If lieutenant Stockton had acted with gross negligence or malignity, and with a wanton abuse of power, there might be strong grounds on which to rest this claim of damages. But, it is conceded on all sides, and in this opinion the court concurs, that he acted with honourable motives, and from a sense of duty to his govern- ment. He thought the aggression was piratical, and that it was an indignity to the national flag, utterly inexcusable. The view now taken by this court, in respect to the whole case, upon a full examina- tion of all the facts, is certainly somewhat different. It leads us to say, that lieutenant Stockton might, without justly incurring the displeasure of his government, have released the ship, not because she had done no wrong, but because the wrong was not of Such a nature as called for vindictive redress. But, the question upon which damages must depend, is not whether he might not have released the ship, but, whether he was, at all events, bound so to do ; and whether that obligation was so imperative, that the Omission ought to be visited with damages. We are, then, to consider the real difficulties of lieutenant Stockton's situation. An attack had been made upon a national ship under his ♦command without cause. It was a hostile act, an indignity to r#nin the nation, and a trespass upon its rights and sovereignty. It '- was not an accidental, but a meditated act ; not necessarily carrying its own excuse along with it, but susceptible of different interpretations. It was not an affair in which he was at liberty to consult his own wishes or honour merely, although a brave and distinguished officer might naturally feel some solicitude to preserve his high reputation un- tarnished in the eyes of his government. He was bound to look to the rights of his country. He might well hesitate in assuming the arbitra- tion of national wrongs. He might well feel a scrupulous delicacy in undertaking to waive any claim which the government had authority to enforce, or to defeat any redress which it might choose to seek, or to prevent any inquiries which, through its established tribunals, it might think fit to institute, in respect to.his conduct, or that of the offending vessel. Considerations of thi3 nature could not but weigh heavily upon 178 FEBRUARY TERM, 1826. 213 [The Marianna Flora.] the mind oiF a gallant officer; and they are not unfit to be entertained by this court in forming its own judgment. It is, also, farther to be observed, that the case was confessedly new in its character and circumstances. The resefirches of counsel through- out the progress of this protracted controversy, have not discovered any case, which, in point of law, can govern this. If it is new here, it may well be deemed to have been new and embarrassing to lieutenant Stockton. In such a case, it is not matter of surprise, that he should come to the conclusion that it was not proper to take upon himself the responsibility of a final decision ; but to confide the honour of the na- tion, as well as the rights of the other party, to judicial decision. No inference is attempted to be drawn, that his acts were intentionally op- pressive and harsh ; and it would be going a great way to declare, that an exercise of honest discretion, in a case of wrong on the other side, ought to draw after it the penalty of damages. There is another more general consideration which is entitled to great weight in this case. In cases of capture, strictly so called, no decision has been cited, in which, if the capture itself was justifiable, the subsequent detention for adjudication has ever been punished by damages. As far as counsel have examined, or our own researches extend, no such principle has ever been established. The present case stands upon a strong analogy, and to inflict damages would be to desert that analogy. Even in cases of marine torts, independent of prize, • courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circum- scribed themselves within the positive boundaries of mere municipal law. They have exercised a conscientious discretion upon the ♦subject. A party, who is in delicto, ought to make a strong r^ni^ case, to entitle himself to general relief. ■- The case of the Louis, 2 Dodson's Rep. 210, is a striking example in illustration of these remarks. There a French slave-ship was, in a time of peace, taken possession of by an English armed cutter, after a sharp engagement, in which several men were killed on both sides. The ship was carried into Sierra Leone for adjudication, and, subse- quently, the cause came before the high court of admiralty upon appeal. The decision pronounced by lord Stowell appears to have been made after very full consideration, and is expounded in his most elaborate manner. He decided, that the original seizure vras totally unjustifia- ble ; and that, even if the slave trade was prohibited by the Frehch laws, (which, he thought, it was not,) still it was not for English cruisers to claim a right of search, or to seize such vessels to enforce those laws. He, therefore, pronounced a decree of restitution. But he denied damages and costs to the claimant. His language on that occasion was, " upon the matter of costs and damages, that have been prayed, I must observe, that it is the first case of the kind, and that the question itself is primae impressionis ; and that, upon both grounds, it is not the inclination of the court to inflict such a censure." Here, then, we have a case of an -acknowledged maritime trespass, accompanied with circumstances of immediate and fatal injury,in which the original wrong travelled along with and infected the whole subsequent proceed- ings ; and yet the court, on account of its being the first instance, and of the novelty of the question, deemed it a conscientious exercise of its 179 214 SUPREME COURT. [The Marianna Flora.] discretion not to award damages. The case before this court is also of the first occurrence, and the question is entirely new in its presentation. It has this striking fact, in which it is most favourably distinguished from the Louis, that the original seizure was justifiable, and if the intent of piratical aggression had been established, condemnation must have ensued. If, then, this court should, under these circumstances, award damages, it would take a new step, never known to have, been taken before by a court of admiralty. It would desert the analogy of cases of justifiable capture in matters of prize, and introduce a rule harsh and severe in a case of first impression, whose bearing and character have engaged the bar and bench in several most laborious discussions, and inflict upon an honest exercise of discretion, a punishment which has been denied, in the Louis, to an inexcusable wrong. There are one or two other suggestions which were urged in the argument, that ought not to be passed over in silence. It is said, that the tort, if it ought to be redressed at all by a proceeding in rem, was ♦Qm *6xclusively cognisable in the courts of Portugal. We are not ■I aware of any principle upon which this position can be legally maintained. There is no more reason why the courts of Portugal should hold exclusive jurisdiction upon this case, than the courts of this country. We see no difficulty in supporting the jurisdiction as concurrent in both nations. But, if there be any choice, it seems more properly to belong to the country of the injured, than of the offending party. It is also said, that, at all events, the cargo was not liable to condem- nation, even if the offending vessel was liable under the act of congress. Probably this is true in respect to that act. But the second count em- braces a wider range ; and if it had been proved in its aggravated ex- tent, it does not necessarily follow, that the cargo ought to be exempted. That is a question which would require grave deliberation. It is, in general, true, that the act of the master of the vessel does not bind the innocent owner of the cargo ; but the rule is not of universal applica- tion. And where the master is also agent of the owner of the cargo, or both ship and cargo belong to the same person, a distinction may, perhaps, arise, in the principle of decision. But, however this may be, in the present case, if the vessel was sent in for adjudication, the cargo must, of necessity, accompany her ; nor could its particular ownership be fully ascertained, until the examinations of the crew were regularly taken. There is no evidence in this case to show, that at any sub- sequent period it was desirable, or could have been advantageous to the claimants, to have separated the ship and cargo, and to have instituted a new voyage for the latter under other auspices. In the district court, an allowance was made of five hundred dollars, distributable among the crew, on account of their confinement on the passage to Boston, upon the ground, that the sending in of the vessel was wrongful. That award was reversed in the circuit court ; and no appeal was taken by the crew, as, indeed, none eould be, on account of the insufficiency of the sum to entitle the parties in interest to appeal. It is only necessary, therefore, to state, that that matter is not now before this court ; and, it is to be presumed, that the confinement was such only as was indispensable for the safety of the seizors. 180 FEBRUARY TERM, 1826. 215 [Etting V. The Bank of the United States.] Upon the whole, it is the opinion of the court, that the decree of the circuit court ought to be affirmed, and it is, accordingly, affirmed, with- out costs to either party. Decree accordingly. Amendment. See notes, 2 Cond. Rep. 176. In admiralty and maritime causes, amendments, introdactive of new causes of action, are within the scope of the general rule, that the part; ma; make new allegations in the appellate court The Harmony, 1 Gallis. 123. ♦Solomon Etting, Plaintiff in error v. The President, Di- [-#2jg rectors and Company of the Bank of the United States, '■ Defendants in error. 10 Wheaton's Reports, 59. Although a judge may refuse to declare the law to the jury on a hypotbecical question not warranted by the testimony in the cause, yet, if he proceeds to state the law, and states it erroneously, his opinion may be revised in the court above ; and if it can have had any influence on the jury, their verdict will be set aside. [See note at the end of the case.] Although it is the province of the court to construe written instruments, yet where the eflfect of such instruments depends, not merely on the construction and meaning of the instrument, but upon collateral facts in pais, and extrinsic circumstances, the inferences of fact to be drawn from them are to be l,eft to the jury. Where the court is equally divided in opinion upon a writ of error, the judgment of the court below is to be affirmed. [See note at the end of the case.] Quaere, What concealment, or suppression of material facts, in a contract, where both parties have not equal access to the means of information, will avoid the contract? ERROR to the circuit court of Maryland. This was an action of assumpsit brought in the court below by the defendants in error, against the plaintiff in error, Etting, as the endorser of the promissory note of James W. M'CuUough, under the following circumstances. In the year 1819, the president of the branch bank established at Baltimore, his partner in trade, M'CuUough, the cashier of the branch, and Williams, one of the directors of the parent bank, had contracted a debt to the bank to the amount of three million four hundred and ninety-seven thousand seven hundred dollars. The directors at Phila- delphia, in consequence of some information which they had received respecting it, passed a resolution on the 19th of February, 1819, cal- culated to draw forth a complete statement of the case, with all its circumstances. This resolution brought the papers it required, and, also, brought the president and cashier to Philadelphia, who attended for the purpose of making verbal explanations. These were received, and the case was referred, on the 16th of March, to a committee, whose report was made on the 30th of the said month. It appeared by this report, that the securities offered for the debt consisted of twenty thou- sand eight hundred and forty-eight shares of the stock of the bank, of ^ ^ Q 181 216 SUPREME COURT. [Etting V. The Bank of the United States.] twenty-six thousand five hundred and fifty shares previously pledged for very large sums in London, Liverpool, New York and Boston, the *2171 *'''^ount of which was not stated, and the personal liability of -I the debtors themselves. The report stated, " as the result of many conferences, and a good deal of deliberation," an offer on the part of the debtors to give additional security for nine hundred thou- sand dollars, payable in five years by annual instalments. A part of the proposed arrangement was, that the shares, previously pledged in London, and elsewhere, should be liberated from the claim of the bank, and that the separate liability of each for three hundred thousand dol- lars, should be received, instead of the joint liability of all for nine hundred thousand dollars. This offer, with some modifications, was accepted by the bank. A part of the security offered by M'Cullough, were sixteen merchants of Baltimore, who were to become bound for twelve thousand five hundred dollars each. The committee recom- mended the acceptance of these terms, and also recommended, that the sufficiency of the security offered by Williams and M'Cullough, including the sixteen sureties proposed by M'Cullough, should be re- ferred to the members of the board residing in Baltimore. This course was adopted by the bank, and the committee of members residing in Baltimore reported on the whole subject. Of the sixteen names pro- posed for their consideration, three were withdrawn, and three were objected to. Among those who were accepted was Etting, the plaintiff in error. The negotiations, investigations, and arrangements, for the completion of the business, were some time in progress. Propositions were made for changes of the securities, and, on the 10th of May, the president of the bank addressed a letter to the committee in Baltimore, urging them to bring it to an immediate close. On the 14th of May, thp committee at Baltimore reported the documents which had been executed in pursuance of previous arrangements made with the debtors, a report of which was made by the committee at Philadelphia, on the 17th of the same month, and, on the 18th M'Cullough was removed from the ofiice of cashier, which he had held from the first establish- ment of the bank. It was admitted, that he was a young man worth nothing, who had a family, and whose salary as cashier was four thou- sand dollars. When the note endorsed by Etting, the plaintiff in error, fell due, he refused to pay it ; on which it was protested for non-payment, and this suit was brought by the bank. At the trial in the court below, the whole matter was given in evidence, and the court was moved to in- struct the jury on the law which would arise on the facts of the case, and the inferences which the' jury might draw from those facts. The counsel for the plaintiffs moved the court to instruct the jury, that if they should be of opinion, from the evidence, that the defendant, Etting, without any communication with the plaintiffs, but on the appli- *2181 ^^^'°" *^^ M'Cullough only, agreed to become his endorser, J under the arrangement made between him and the plaintiffs, although they should be satisfied, from the evidence offered by the defendant, that the said M'Cullough deceived the said Etting; that it was known to the bank before, or pending the negotiation, that the debt from M'Cullough, or the greater part thereof, had grown out of his unauthorized and fraudulent appropriation of their funds to his own 182 FEBRUARY TERM, 1826. 218 [Etting V. The Bank of the United States.] use, which knowledge the bank did not promulgate, though they con- templated his removal as soon as the securities should be given, in con- formity with the arrangement which had been made; that the de- fendant endorsed the note in ignorance of any fraud on the bank, or of any abuse of his office of cashier, or of any probability of his removal from the said office ; that, had the defendant known these cir- cumstances, he would not have endorsed the said note; and that the bank forbore to promulgate either the information they possessed, or their intention to remove the said M'CuUough, under the impression, that the disclosure would increase the difficulty of the said M'CuUough in procuring security, if not render it impossible for him to procure it ; yet, if they shall also be of opinion, that the defendant, without making any inquiries of the plaintiffs on the subject of such information and intention, or holding any communication with them on the subject of his intended endorsement, did, of his own accord, on the application of the said M'CuUough, and for the purpose of giving effect to the said arrangement, endorse the said note on which this action is brought, that there was nothing in the evidence so given by the defendant, to afiect the plaintifTs right of recovery in this action. That, in order to vitiate the said note and endorsement in law, and to bar the plaintiff's right of recovery thereon, on the ground of a fraudulent misrepresen- tation, or fraudulent concealment of circumstances known to them, and unknown to the defendant, it was incumbent on the defendant to show that he applied to the plaintiffs for information, or held some communication with them for the purpose of receiving such informa- tion, and that on such application or communication, the plaintiffs either misrepresented or concealed such circumstances; and that, in the absence of such proof, there was nothing in the facts so given in evi- dence by the defendant, to afiect the right of recovery in the action. The court gave the instruction as asked, to which an exception was taken. The counsel for the defendant then moved the court for instructions, that if the jury should draw from the evidence certain inferences which were stated, the plaintiffs were not entitled to recover. These infer- ences were, that the bank was fiiUy informed in March, 1819, of the •fraudulent conduct of M'CuUough, the extent of his misapplica- r#oiq tion of their funds, and of his insolvency ; that on receiving this L information, they became satisfied of his unfitness to continue in office, and determined to remove him. That, however, they continued him in office until the 18th of May, carefully concealing the circumstances, and their determination, for the purpose of obtaining security of the debt due to them from the said M'CuUough, one of which so contem- plated securities was the note in question. That the defendant was, to the knowledge of the plaintiffs, ignorant of M'CuUough's breach of duty, and of the determination to remove him, and endorsed the note by reason of that ignorance. The court refused to give this instruction, unless the jury should be further gf opinion, that the defendant was led into this state of igno- rance in consequence of inquiries made by him of the plaintiffs, or of some previous communication between them and him. On the farther application of the counsel for the defendant, praying the court to instruct the jury, that on the statement and evidence con- 183 219 SUPREME COURT. [Etting V. The Bank of the United States.] tained in the bills of exceptions, if the jury believed the same, the plain- tiffs were not entitled to recover ; the court refused to give the instruc- tion asked, and directed the jury, that on the evidence aforesaid the plaintiffs were entitled to recover. Judgment was rendered for the plaintiffs in the court below, and the cause was brought by writ of error to this court. The tause was argued by Mr. Webster and Mr. Taney, for the plain- tiff in error ; and by the Attorney-General and Mr. Emmett, for the defendants in error. The following cases were cited : 1 Com. Contr. 38. 1 W. Bl. Rep. 465. 1 Fonhl. Eg. 379, note h. Dougl. 18. Hill v. Gray, 1 Starkie's JV. P. Rep. 434. Verplanck on Contracts, passim, 8 Mass. Rep. 408. Laidlaw v. Organ, 2 Wheat. Rep. 183. 4 Cond. Rep. 479. Stuart v. Wilkins, Dougl. 18. Pidcock v. Bishop, 3 Barnw. and Cresw. 605. Smith v. Bank of Scotland, 1 Dow. Pari. Rep. 272, 294, 395. 1 Brod. and Bingh. 289. Jackson v. Buchaire, 3 Term Rep. 55L <2 Wheat. Rep.'iQb. 4 Cond. Rep. 120. 2 Term Rep. 587. Sugd. Vend. 226, 227, and the cases there collected. Paisley v. Freeman, 3 Term Rep. 51. M'CuUough v. Maryland, 4 Wheat. Rep. 411, 422. 4 Cond. Rep. 466. 1 Fonbl. Eq. 164. Fox v. Mackreth, 2 Bro. Ch. Cas. 420. Webster v. Chrystie, 1 Dow. Pari. Rep. 247. Verplanck on Contracts. Mr. Chief Justice Marshall delivered the opinion of the court. If this case depended on the deservedly high character of the indivi- duals who were engaged on the part of the bank in the transactions in *2901 ^wlf^'ch the suit originated ; if elevation above the possibility of J suspicion that they could have meditated any thing believed by themselves to be legally or morally wrong, cduld decide it, this cause would not have required the great efforts which have been bestowed upon it. The names which appear on this record can never be con- nected with actual fraud ; nor would any difficulty be found in pro- tecting them from the imputation, were it possible that it could be made. But judicial inquiries are into the rights of the parties; an'd, although high and honourable character has, and ought to have, great influence in weighing . testimony in which that character is in any manner involved ; yet, when the inferences from that testimony are drawn by others, and a court is required to pronounce the law arising upon them, character is excluded from the view of the judge, and legal principles alone can be acknowledged as his guide. At the trial, several points of law were raised by both parties, on which opinions were given, to which exceptions were taken, and the correctness of those opinions constitutes the single inquiry in this court. [Here the learned chief justice stated the case, as it is stated above.] As preliminary to the inquiry, whether the law arising on the facts and on the inferences assumed in the bills of exceptions contained in the record, was correctly stated by the court, a point has been made at the bar, which must be disposed of. It has been contended, that a court is not bound to answer abstract or hypothetical questions of law, not growing out of the testimony in the cause, which may be pro- pounded at the bar ; and to apply this principle, it has been also con- tended, that the testimony contained in the record, and referred to in 184 FEBRUARY TERM, 1826. 320 [Etting V. The Bank of the United States.] the bills of exceptions, contains nothing from which the jury could possibly draw those inferences of fact upon which the court was asked to declare the law. That the points made in the bill of exceptions constitute a distinct and totally different case from that made by the evidence. That a judge cannot be required to declare the law on hypothetical questions which do not belong to the cause on trial, has been fre- quently asserted in this court, and is, we believe, incontrovertible. Hamilton v. Russell, 1 Crunch's Rep. 309, 318. 1 Cond. Rep. 318. The court may, at any time, refuse to give an opinion on such a point ; and if the party propounding the question is dissatisfied with it, he may except to the refusal, which exception will avail him, if he shows that the question was warranted by the testimony, and that the opinion he asked ought to have been given. But, if the judge proceeds to state the law, and states it erroneously, his opinion ought to be revised ; and if it can have had any influence on the jury, their verdict ought to be set aside. It cannot, however, we think, be correctly afiirmed with respect to *the case now under consideration, that the points stated in the r#ooi bills of exception have no relation to the testimony to which '■ those bills refer. That testimony consists of various communications and reports, made to the bank, of their own transactions, and of the admissions of parties. It has been said that this testimony is all in writing, and is to be construed by the court ; and from this proposition is deduced the corollary that the jury was not at liberty to draw infer- ences from it. Were the fact as alleged, and were it true that the testimony is all in writing, the consequence drawn from it cannot be admitted. Con- ceding it to be the province of the court to construe any particular paper which was offered in evidence, the report of the 30th of March, for example, and to declare the meaning of every sentence and of the whole instrument, yet this report contains a great variety of extrinsic circumstances, suggests measures of deep interest, was followed by numerous successive acts which took place in the country, and which do not derive all their influence on the cause from the construction of the particular papers in which they are communicated, but, in a consi- derable degree, from their connection with each other, from the motives in which they originate, and from the effects they were calculated to produce, and did produce, on others. These subjects are peculiarly proper for the consideration of a jury. If the testimony be examined, it will, we think, appear that the counsel for the plaintiffs has not asked the court to give its opinion on any inferences of fact which it was not at least possible for the jury to draw from the evidence. The know- ledge of the bank is not questioned. The ignorance of Etting might be inferred from the absence of all testimony proving his knowledge that any fraud had been practised by M'Cullough. The original resolution of the bank to remove M'Cullough might be inferred from their know- ledge of his unfitness for the office, and from the fact that they did remove him the instant the securities were obtained which they expect- ed from him. The same facts might justify the inference respecting the motives which induced the bank to retain him in office until those secu- rities were procured. Vol. VI. — 24 qS 185 221 SUPREME COURT. [Etting V. The Bank of the United States.] We are far from saying that these inferences were all of them such as the jury ought to have drawn. It is not difficult to perceive that the bank might have acted on motives equally unexceptionable in morals and in law. The jury might very well have believed that the bank thought the twenty-six thousand five hundred and fifty shares of stock were not worth more than the sums for which they were pledged, or, at any rate, were not a safe security, and might, therefore, think it advisable to relinquish that pledge, if other security could be substituted in its place. Others might estimate that stock more highly than they '*2221 *^^^' ^"'^ might estimate it rightly. Friends, therefore, acting on -' their own judgment of the value of this stock, might be found willing to endorse the paper of Mr. M'Cullough on receiving it as a pledge. The motive, too, for retaining Mr. M'Cullough in office, might be to induce him to do the bank all the justice in his power, not to in- duce others to endorse his notes. The whole subject was before the jury, and they might have drawn from the testimony either these infer- ences, or those which are stated in the bills of exceptions. The counsel for the plaintifis, believing the law to be in their favour even upon that view of the testimony which is taken in the exceptions, and fearing that the jury, should they take that view, might find for the defendant, chose to refer the law to the court. Whether his fears respecting the jury were well or ill founded, this cause must now be decided on the correctness of the opinion given by the circuit court. In the very elaborate arguments which have been made at the bar, several cases have been cited which have been attentively considered. No attempt will be made to analyze them, or to decide on their appli- cation to the case before us, because the judges are divided respecting it. Consequently, the principles of law which have been argued can- not be settled ; but the judgment is affirmed, the court being divided in opinion upon it. Judgment affirmed. Court. No court is bound, at the mere instance of the party, to repeat over to the juiy the same substantial proposition of law, in every variety of form which the ingenuity of counsel may suggest. It is sufficient if it is once laid down in an intelligible and unexceptionable manner. Kelly V. Jackson et ah, 6 Peters, 632. Divided court. The court being divided on a motion in arrest of judgment, judgment must be given on the verdict. United States v. Worrall, 2 Dall. 388. 186 FEBRUARY TERM, 1826. JWS *Brooks V. Marbury. [*223 11 Wheaton's Reports, 78. ^ debtor has a right to prefer one creditor to another in payment ; and it is no objection to the validity of an assignment for that purpose, that it was made by the grantor, and received by the grantee, as trustee, in the hope and expectation, and with a view of preventing prosecu- tion for a felony connected with his transactions with his creditors ; if the preferred creditors have done nothing to excite that hope, and the assignment was made without their know- ledge or concurrence at the time of its execution, and without a knowledge of the motives which influenced the assignor, or was not afterwards assented to by them under some engage- ment express or implied to suppress or forbear the prosecution. [See note at the end of the case.] An assignment for the benefit of preferred creditors is valid, although their assent is not given at the time of its execution, if they subsequently assent in terms, or by actually receiving the benefit of it It is no objection to such an assignment, that it defeats all other creditors of their legal reme- dies, even if amounting to « majority in number and value, unless there be some express provision of a bankrupt law to invalidate the deed. Qu:ere,> How far, and under what circumstances, the possession of the property assigned to trustees for the benefit of creditors, continuing in the grantor, will invalidate the assignment. [See note at the end of the case.] A certified copy of a registered deed cannot be given in evidence, if within the power of the party claiming under it to produce the original, unless there be some express provision by statute making an authenticated copy evidence. ERROR to the circuit court for the district of Columbia. This is the same case which is reported ante, 7 Wheat. Rep. 556, 5 Cond. Rep. 344. The judgment of the court below was then reversed, and a venire de novo awarded. At the new trial, exceptions were taken to the instructions given by the court to the jury ; and the cause having again been brought before this court for revision, was argued by Mr. Jones and Mr. Coxe, for the plaintiff) who cited : 6 Harris and Johns. Rep. 234. Hamilton v. Russell, 1 Crunch's Rep. 310, 1 Cond. Rep. 318. Hildreth v. Sands, 2 Johns. Ch. Cas. 35. Edwards v. Har- lin, 2 Term Rep. 587 : and by the Attorney-General and Mr. Key, for the defendant, who cited: Marbury v. Brooks, 7 Wheat. Rep. 556, 5 Cond. Rep. 344. Wheaton v. Sexton, 4 Wheat. Rep. 503, 4 Cond. Rep. 519. Astor v. Wells, 4 Wheat. Rep. 466, 4 Cond. Rep. 513. Sands u. Hildreth, 14 Johns. Rep. 493. Mr. Chief Justice Marshall delivered the opinion of the court. This case depends on the validity of a deed executed by Richard H. Fitzhugh on the 31st of December, 1819, purporting to convey to the ♦defendant, for the use of certain enumerated creditors, his slaves, r^ooA, goods, and debts, which deed was recorded in the record book '■ for the county in which the parties resided, on the 3d of January, 1820. Immediately after executing this deed, the said Fitzhugh absconded; and on the 10th of February thereafter, the plaintiff sued out an at- tachment to attach his effecls in the hands of the said Marbury. The garnishee denies that he has any effects of the said Fitzhugh in his hands which can be affected by the attachment, the same not being sufficient to satisfy the creditors enumerated in the deed which has 187 224 SUPREME COURT. [Brooks D. Marbury.] been mentioned. The plaintiff contests the validity of that deed. The jury found a verdict in favour of its validity, upon which the circuit court rendered a judgment against the plaintiff, which he has brought before this court by a writ of error. In the course of the trial, excep- tions were taken by the counsel for the plaintiff to some opinions given by the court, and to its refusal to give others for which they applied. The correctness of the opinions given, and of the refusal of those not given, will now be considered. On the trial, the garnishee offered to read from the record books of the county, the memorial of the deed which has been mentioned, to which the plaintiff objected, and insisted that the original ought to be produced. The court overruled this objection, and the copy was read To this opinion of the court the plaintiff's counsel excepted ; and he now insists, that there is no law of the state of Maryland which directs a deed of the description of that of which a copy was read in this case, to be recorded ; and that, if there were such a law, still the original ought to be produced, if within the power of the party claiming under it. The act of 1729, chapter eight, enacts, "that from and after the end of this session of assembly, no goods or chattels whereof the vendor, mortgagor or donor, shall remain in possession, shall pass, alter, or change, or any property thereof be transferred to any purchaser, unless the same be by writing, and acknowledged before one provincial justice of the county where such seller, mortgagor, or donor, shall reside, and be within twenty days recorded in the records of the same county." The counsel for the plaintiff insists, that this law directs the record- ing of those deeds only which convey property of which the donor remains in possession, and that the possession in this case must be sup- posed to have passed with the deed, unless the contrary be shown. This objection is not without its weight. It, however, does not ap- pear to have been suggested at the trial, and probably did not occur to the court or the parties at the time, or it might have been shown that in point of fact the possession was not immediately changed. Since, *99. Gratz, 1 Peters's Rep. C. C. 364. S. C. 6 WAea/. Rep. 494. 5 Co?jrf. ilep. 142. Wharton's Dig. 580. 4 Ves. Jun. Rep. 108. 6 Ves. Rep. 39. 2 JoAns. Ch. 405. 7 Crunch's Rep. 176. 11 ./l/ass. /?ejo. 342. 13 Mass. Rep. 443. 4 East's Rep. 577, n. 1 Eden's Rep. 515. 1 Coa;'s Rep. 15. 1 Fes. Jm«. 19, 20. 4 Desauss. 518. Cas. iemjo. TaZt. 116. 1 Madd. Ch. 208. 5 /oAns. Rep. 158. 3 Bac. .46r. 527, 540. 13 Ves. Rep. 88. 8 Mass. Rep. 371. Co. Litt. 246, b., note (1). 1 Madd. Ch. 223, 224. 3 Bac. Mr. 321. 2 .4s after his having received funds, the injunction of the act J is imperative, " that he shall be recalled, and another appointed in his place." It is contended by the defendant's counsel, that this section leaves no discretion in the proper officer of the government to continue the paymaster in office after his delinquency, but that he ceases thereafter to be paymaster, and the responsibility of his sureties is terminated. It must be conceded, that the injunction on the proper officer of the government to recall the delinquent paymaster, is expressed in very strong language. But, whether the omission to perform the act, amounts, under every possible circumstance, to a breach of official duty, may admit of some doubt. May it not be excused in a case where the paymaster has been prevented from rendering his vouchers at the periods mentioned in the act, by causes acknowledged by the government to have been beyond his control ? And, if it may, it would seem, that the ground of excuse could not properly be made a subject of judicial in- quiry in an action against the surety. It may further be remarked, that if it had been the policy and intention of the legislature, that the act of delinquency should be inexorably followed by a removal from office, it might not be unreasonable to presume, that such a consequence would have been distinctly announced. It is not, however, the intention of the court, to express any opinion upon this point, because, whatever may be the duty of the proper officer of the government in this respect, it must, we think, be admitted, that until the paymaster is recalled, he 222 FEBRUARY TERM, 1826. 2G7 [United States v. Vanzandt.] continues in office. The act authorizes, perhaps requires, his recall, but it does not displace him. The officer whose duty it may be to recall him, acts upon his own responsibility to the government by de- clining to do so; but until he acts otherwise, the paymaster is authorized, notwithstanding his delinquency, to receive, and to disburse the funds Avhich may be placed in his hands. The attempt to distinguish this from Kirkpatrick's case, is made upon the ground, that that was purely a case of laches, whereas, in this, an unauthorized act was done by the government in confiding funds to the disposal of a public defaulter, whom the government was bound by law to have dismissed from office. But, will it be contended, that the obli- gation to dismiss this officer was more imperative than that imposed upon the comptroller to call the collector of direct taxes to account at the periods prescribed by law, and in cases of delinquency, to pursue the summary remedy which the same law provided for the safety of the public, and, consequentially, for that of the surety ? The neglect in the one case, and in the other, imputes laches to the officer whose duty it was to perform the acts which the law required ; but, in a legal point of view, the *rights of the government cannot be affected "by r»o«Q these laches. The provisions in both laws are merely directory '■ to the officers, and intended for the security and protection of govern- ment, by insuring punctuality and responsibility ; but they form no part of the contract with the surety. If, then, the paymaster continues in office, notwithstanding the omission of the proper officer to recall him on the ground of his defaults, the act of placing funds in his hands to be disbursed according to law, is not one of which the surety can complain, since the public interest requires that the troops should be paid, which can be done only by the officer appointed for that purpose. If the neglect of the officers of government, from which the surety suffers, does not discharge him from his responsibility in either case, it is not perceived how the placing funds in the hands of the paymaster, who continues in office, can have that effect, seeing that the latter cir- cumstance is the necessary consequence of the former. If the law dis- placed the officer upon the ground of delinquency, the placing funds in his hands, after his removal from office, could not possibly be upon the responsibility of the surety, inasmuch as his undertaking was for the faithful discharge of the duties of his principal as paymaster, and, consequently, he is not bound for his acts after he has ceased to hold that office. The whole argument of the counsel for the defendant pro- ceeded upon the assumption, that the office terminated, ipso facto, as soon as the delinquency occurred, which, we have endeavoured to show, presents an incorrect view of the subject. Whether, admitting that the surety could claim to be discharged from his responsibility, upon the ground assumed by his counsel, such a defence could be set up on the proceedings in this cause, is a question upon which the court avoids expressing an opinion, because it is rendered unnecessary by that which has been pronounced, and because it was not argued at the bar. The opinion of the court is, that there is error in the judgment of the court below, and that the same ought to be reversed. Judgment reversed. 223 268 SUPREME COURT. [United States v. Vanzandt.] Principal and surety. See notes, 3 Cond. Eep. 394. The claims of the United States, upon an official bond, and upon all Iho parties to it, is not released by the laches of the officer to whom the assertion of this claim is intrusted. Such laches have no effect whatsoever on the rights of the United States, as well against the sureties, as the principal in the bond. Dox v. The Postmaster-General, 1 Peters, 325. The discharge, by the secretary of the treasury, of the principal in a bond to the United States, who is imprisoned under a ca. sa. isaued against him, and who has assigned all his pro- perty for the use of the United States, does not impair or affect the rights of the United States, to proceed against sureties for the amount due upon the judgment, and unpaid. United States V. Stanshury et al, I Peters, 575. *9RQT y * special act of congress the principal debtor was discharged from imprisonment, ""^J and the expression is omitted in this act which is used in the general act passed June 6th, 1798, "providing for the relief of persons imprisoned for debts due to the United States," that " the judgment shall remain good and sufficient at law." In the special act it was declared that any estate which the debtor " may subsequently acquire shall be liable to be taken, in the same manner as if he had not been imprisoned and discharged." The special act did not release the judgment, and did not affect the rights of the United States against the surety. Hunter v. The United States, 5 Peters, 173. The act of government in releasing both the principal and surety from imprisonment was designed for the benefit of unfortunate debtors, and no unnecessary obstructions should be op- posed to the exercise of so humane a policy. If the discharge of the principal, under such ' circumstances, should he a release of the debt against the surety, the consequence would be that the principal must remain in jail until the process of the law were exhausted against the surety. This would operate against the liberty of the citizen, and should be waived, unless required to secure the public interest. Ibid. The plaintiffs in error are sureties in an official bond ; and it is perfectly clear, as to them, u judgment cannot be rendered beyond the penalty, to be discharged on payment of what is due, which of course can only be where it is less than the penalty. The statute expressly requires that the surveyors of the public lands shall give bond for the faithful disbursement of public money, and in this bond the words which relate to disbursement are omitted, and the only words inserted are, " that he shall faithfully discharge the duties of his office." The court feel no difficulty in maintaining that where the conditions are cumulative, the omission of one con- dition cannot invalidate the bond so far as the other operates to bind the party. Farrar and Brown v. The United Stales, 5 Peters, 373. Hector was commissioned surveyor of the public lands on the 13th of June, 1823, and the bond bears date the 17th August, 1823. Between the 3d of March and the 4th of June, in the same year, there had been paid to Rector from the treasury the sum of money found by the jury, and thus it was paid to him before the date of his commission, and before the date of the bond. By the court : for any sum paid to Rector prior to the execution of the bond, there is but one ground on which the sureties could be held answerable to the United States, and that is on the assumption that he still held the money in bank or otherwise. If still in his hands, he was up to that time bailee to the government; but, upon the contrary hypothesis, he had become a debtor or defaulter to the government, and his offence was already consummated. If intended to cover past dereliction, the bond should have been made retrospective in its language. The sureties have not undertaken against his past misconduct. They ought, therefore, to have been let in to proof of the actual state of facts so vitally important to their defence, and whe- ther paid away in violation of the trust reposed in him ; if paid away, he no longer stood in the relation of bailee. Ihid. Such a case was not one to which the act applies which requires the submission of accounts to the treasury before discounts can be given in evidence ; since this defence goes not to dis- charge a liability incurred, but to negative its ever existing. Ibid. See also Douglass v. Reynolds, 7 Peters, 113. 224 FEBRUARY TERM, 1826. 270 [Otis V. Walter. — Hinde's Lessee v. Longworth.] *270] *Otis, Plaintiff in error, v. Walter, Defendant in error. 11 WJieaton's Reports, 192. UNDER the embargo act of the 25th of April, 1808, ch. 170, s. 11, the collector is protected in the honest exercise of his discretion in detaining the vessel, and securing both vessel and cargo* until an actual termination of the voyage. Whether the voyage has terminated, is a question of fact ; and if the voyage be colourably, but not really terminated, the collector may detain the vessel, if he has honest suspicions. Hinde's Lessee v. Longworth, 11 Wheaion's Reports, 199. Question as to the sufficiency of a certificate of acknowledgment of a deed at laiide in Ohio. [See note at the end of the case.] In examining the admissibility of testimony in the court above, the party excepting is to be confined to the specific objection taken at the trial. Where a voluntary deed is impeached as fraudulent, evidence of judgments against the grantor is admissible as proof (among other facts) that he was indebted at the time of making the deed, although the grantee was not a party to the suits on which the judgments were ob- tained. [See note at the end of the case.] A voluntary deed is void only as to antecedent and not as to subsequent creditors. But when the record of a judgment obtained a short time after the date of such conveyance appears to be founded on accounts exhibiting a prior indebtedness, it is competent evidence to be left to the jury to establish the fact that the grantor was indebted at the date of the deed. A deed from a parent to a child for the consideration of love and affection is not absolutely void as against creditors : it may be so under certain circumstances ; but the mere fact of being in debt to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision according to his estate and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud, but it is only presumptive •and not conclusive evidence of it, and may be met and rebutted by evidence on the r^nn-t other side ; and where the deed to the child is expressed to be for the consideration [■*''• of love and affection, evidence to show that the father was indebted at the time to the child, to an amount equal to the value of the property conveyed to him, is competent to go to the jury to repel the presumption of fraud. ERROR to the circuit court of Ohio. This was an action of ejectment brought by the plaintiff in error, to recover the possession of the premises in the cause, described as in lot number 107 in the town of Cincinnati. It appeared in evidence at the trial, that on the 28th of March, 1799, Thomas Doyle, senior Vol. VI.— 29 225 271 SUPREME COURT. [Hinde's Lessee v. Longworth.] under whom both parties derived title, was seised and possessed of the lot in question. The lessor of the plaintiff claimed under a deed of that date from Thomas Doyle, senior, to his son Thomas ; and the de- fendant set up a title under a judgment against Doyle the elder, at the suit of John Graff, entered at the August term, 1799, of the court of common pleas for the county of Hamilton. At the trial, three bills of exceptions were taken by the lessor of the plaintiff. The first bill of exceptions stated, that the plaintiff in support of his action offered in evidence the deed from Doyle, senior, to his son, to the reading of which in evidenice, the defendant objected, and the court rejected it, as not being properly acknowledged. The certificate of acknowledgment was as follows : " Hamilton, ss. Personally before me, Thomas Gibson, one ©f the justices of the court of common pleas for said county, the above-named Thomas Doyle and— ^ — Doyle his wife, who being examined separate and apart, acknowledged the fore- going deed to be her hand and seal, free act and deed, for the uses and purposes mentioned." Thomas Doyle only had signed the deed. His wife was not named as a party to the conveyance except in the conclu- sion of the deed as fbUosss : " in witness whereof the said Thomas Doyle and his wife, who hereby relinquishes her right of dower in the premises, have hereto set their hands and affixed their seals, the day and year first above written." A seal was affixed to the deed, but no signature of the wife. In the second bill of exceptions, the counsel for the plaintiff stated, that he claimed title under the same deed mentioned in the first excep- tion by virtue of which Doyle the younger became seised of the premises in question, which had descended to the wife of the lessor of the plaintiff, of which facts he adduced proof to the jury. The bill of exceptions then proceeds to state, that the defendant, in order to prove that the deed was made with intent to defraud creditors, having read certain depositions to establish that fact, offered in evidence the records of two judgments recovered against Doyle the elder, one at the *9791 *^"^* ®^ John Graff, at the August term, 1799, of the court of -I common pleas for the county of Hamilton, for upwards of nine hundred dollars; and the other in favour of Edward Shoemaker, at the October term, 1800, of the same court, for five hundred and ninety dol- lars. To which testimony the plaintiff objected, as incompetent evidence, upon the ground, that the proceedings in said suits had taken place between other persons than himself and Doyle, junior, and to which he was not a party. The objection was overruled by the court, and the tesitimony admitted. The third bill of exceptions stated, that after the admission of the evidence aforesaid, (the judgment records,) and in order to repel the pre- sumption of fraud in Doyle the elder, and to show that he had no in- tention to defraud creditors by making the said deed, but to prove that Doyle the younger, then an infant, was the creditor of his father, the plaintiff offered in evidence the depositions of certain witnesses. The bill of exceptions then proceeded to state, that the depositions were offered to rebut the evidence of fraud in fact, and the evidence of a fraudulent intent in the grantor ; but the court declared their opinion to he, that the last-mentioned evidence offered for rebutting the charge of 226 FEBRUARY TERM, 1826. 272 [Hinde's Lessee v. Longworth.] fraud was inadmissible, and rejected the whole of the evidence so offered. Upon these exceptions, a verdict and judgment having been entered for the defendant in the court below, the cause was brought by writ of error to this court. The cause was argued by Mr. Scott, for the plaintiff; and by Mr. Webster and Mr. Hammond, for the defendant. Cases cited for the plaintiff: Co. Litt. 9 b. 3 Atk. Rep. 409. 3 Atk. Rep. 465. Print. Dec. 184. Dougl. Rep. 384. Ambl. Rep. 194, 596. 2 Burr. Rep. 193, 1072. 6 East's Rep. 486. 9 Mass. Rep.2l8. 15 Johns. Rep. 109, 111. Roberts on Frauds, 12 — 15, and n. (c), 37, and n. (p), 1 16, 574, 30, 191. 1 Co. Rep. 93 b. Dyer, 192 b, and 167 b. 10 Co. Rep. 56. 2 P. Wms. 154, 157, 220. Ordin. Cong. 1787, s. 1. Laws of the United States, vol. 1, p. 476. 2 Rev. Code, 302. 1 Lev. Rep. 150, 237. 1 Ventr. Rep. 293. 1 Ch. Cos. 99, 216. Fonbl. Eq. 127, n. (1). Sugd. Vend. 420. 1 P. Wms. 112. 1 Atk. Rep. 94. 1 Ves. Sen. Rep. 10. 2 Bro. Ch. Rep. 90. 8 Ves. Rep. 199. 1 Swanst. Rep. 106. . Brownl. Rep. 189. 5 Ves. Rep. 384. Newl. on Contr. 385 11 Mass. Rep. 421. 9 Mass. Rep. 390. ZDessaus. S. C. Rep. 1. Co Litt. 2 b. 2 Lev. Rep. 217. Phill. Evid. 425, 426, and the authori- ties there cited. Cases cited for the defendant : Roberts on Frauds, 80, 149. 2 P. Wms. 245, 203. Cos. Temp. Talb. 64. 1 Atk. Rep. 188. Ohio Land Laws, 322. Sexton v. Wheaton, 8 Wheat. Rep. 242, 5 Cond. Rep. *419. 7 Johns. Rep. 341. 1 Ves. Sen. Rep. 128. 1 Johns. Ch. r^g«„ Rep. 341. 2 Binn. Rep. 44, 51. 4 Wheat. Rep. 486, 4 Cond. L ^^"^ Rep. 506. Mr. Justice Thompson delivered the opinion of the court. The premises in question in this cause, are described as in lot No. 107, in the town of Cincinnati ; and it is admitted on the record, that on the 28th day of March, 1799, Thomas Doyle, sen., was seised and in possession of this lot. Both parties derive titlie under him. The les- sor of the plaintiff claims under a deed of the date above-mentioned, from Thomas Doyle, sen., to his son Thomas. And the defendant sets up a title under a judgment against Doyle the elder, in favour of John Graff, entered in August, 1799. Upon the trial, the validity of the deed from Doyle the elder to his son was the main subject of inquiry. Three bills of exception were taken on the part of the lessor of the plaintiff, and a verdict entered by consent for the defendant, and the case is brought here by writ of error to the circuit court for the dis- trict of Ohio. 1. The first bill of exceptions relates to the acknowledgment of the deed from Doyle the elder to his son. This was deemed by the court insufficient, and the deed rejected. In the second bill of exceptions, however, the counsel for the plaintiff stated again, that he claimed title under the same deed mentioned in the first exception, by virtue of which Doyle the younger became seised in fee of the premises in question, and which had descended to the wife of the lessor of the plaintiff, of which facts he adduced proof, which was submitted to the jury, and to which proof no objection appears to have been made on the part of the defendant. What that proof was is not stated, but we must presume it 227 273 SUPREME COURT. [Hinde's Lessee v. Longworth.] to have been enough to prove the due execution of the deed, botli be- cause it does not appear to haye been objected to, and because the de- fendant went into evidence to show the deed was fraudulent and void, which would have been altogether irrelevant if the deed had not been sufficiently proved to be submitted to the jury. This might supersede the necessity of this court expressing any opinion upon the sufficiency of (he acknowledgment of the deed; because, admitting the court below erred in rejecting it in the first instance, still, as it was afterwards, in the progress of the cause, duly proved, the judgment would not be re- versed on account of that error, if this was the only question in the cause. We notice this point only to correct what we consider a misappre- "lension of the plaintiff's counsel as to the practice in cases of this kind. But as this case must be sent back to another trial, it is deemed advisa- ble to express an opinion upon the sufficiency of this acknowledgment, the certificate of which is as follows : " Hamilton, ss. Personally before *2741 *™^' T'^^'^^s Gibson, one of the justices of the court of common J pleas for said county, the above-named Thomas Doyle, and Doyle his wife, who being examined separate and apart, acknowledged the foregoing deed to be her hand and seal, free act and deed, for the uses and purposes mentioned." The question is, whether this can be taken for the acknowledgment of Thomas Doyle. He only has signed the deed. His wife is not named as a party in any manner, except in the conclu- sion, which is as follows ; v in witness whereof, the said Thomas Doyle, and his wife, who hereby relinquishes her right of dower in the premises, have hereto severally set their hands, and affixed their seals, the day and year first above written." A seal is affixed to the deed, but no signature. The certificate is insufficient, unless it contains enough to show, with all reasonable certainty, that, in point of fact, Thomas Doyle did ap- pear before the officer and acknowledge the deed. And this, we think, it does not show. It does not even state expressly that Thomas Doyle appeared before the officer; but if that is to be inferred, the purpose for which he appeared is not stated, so that nothing can be inferred from the mere fact of appearance. It does not set forth that he, in point of fact, did acknowledge the deed, or did any one act that might by possibility b6 construed into an acknowledgment. The certificate does state that the wife did acknowledge the deed, which, if true, necessa- rily implies, that she appeared before the magistrate, although that fact is not stated. The form of the certificate is adapted to the aclinowledg- ment of the wife. It states, that being examined separate and apart, she acknowledged the deed to be her hand and seal, free act and deed. The relinquishment of dower, and the affixing of the seal, show that she was intended to be made a party ; and if the court was at liberty to conjecture or indulge any intendment about the real fact, it would be as reasonable, if not more so, to infer that the wife did appear, and make the acknowledgment certified, and by mistake omitted to sign the deed, than that the husband acknowledged it. But the certificate of acknowledgment ought not to be left in such uncertainty. It is ex parte proof of the deed ; and it ought to appear with all reasonable cer- tainty, that the requisites of the, law had been complied with; The deed was, therefore, properly rejected in the first instance. 328 FEBRUARY TERM, 1826. 274 [Hinde's Lessee v. Longworth.] 2. The second bill of exceptions necessarily presupposes that the deed was in evidence before the jury. For it states, that the defendant, in order to prove that the deed was made with intent to defraud credit- ors, and, therefore, void, having read some depositions to prove that fact, offered in evidence the records of two judgments recovered against Doyle the elder ; one in favour of John Graff, on the first Tuesday in *August, 1799, for upwards of nine hundred dollars, and the r^tvyPi other in favour of Edward Shoemaker, in October term, 1800, <- for about five hundred dollars. To the admission of which the plaintiff's counsel objected as incompetent evidence, on the ground that these were proceedings inter alios, to which Doyle the younger was in no- wise a party. The objection was overruled, and the evidence ad- mitted. It will be perceived, that the objection to the evidence was specifi- cally placed on the ground, that Doyle the younger was not a party to the judgments. And it may well be questioned, whether, when the purpose for which the evidence is offered is specifically avowed, the court will look at it in any other point of view, or inquire whether it might not be proper for some other purpose. As a general rule^ we think, the party ought to be confined, in examining the admissibility of evidence, to the specific objection taken to it. The attention of the court is called to the testimony in that point of view only ; and, to admit an inquiry afterwards, whether the evidence might not have been admissible for some other purpose, would be sanctioning a course of practice calculated to mislead. It is unnecessary, however, in this case, to put the question on that ground, for the evidence was admissible in whatever light the objection is taken. The consideration expressed in the deed from Doyle the elder to his son, is natural love and affection, and the judgments were introduced to show that the grantor was in debt at the time of giving the deed, which, as was contended, would render it void as against creditors. This was, therefore, necessarily, an inquiry into matters to which the grantee in the deed was not a party. It was certainly competent for the defendant to show that the grantor was indebted at the time he made the conveyance ; this was a necessary step towards establishing the fraud; and if these judgments conduced to prove that fact, they could not be shut out as incompetent evidence. The extent and effect of the evidence was matter for the jury. If the evidence ought to have been excluded because Doyle the younger was not a party to the judg- ments, the same objection would have lain against the proof of his being in debt to others in any manner whatever ; that would have been equally an inquiry into matters to which the grantee in the deed was not a party. There was, therefore, no objection to the evidence on this ground. The judgments appear to have been entered some short time after the date of the deed, and it is said, that a voluntary deed is void only as to antecedent, and not subsequent creditors, unless made with a fraudulent intent ; and this appears to be the doctrine of this court, as *laid down in Sexton v. Wheaton, 8 Wheat. Rep. 242, 5 Cond. r#276 Rep. 419, after a review of the leading authorities on this ques- L tion. But copies of the accounts upon which the judgments were ^ U 229 276 SUPREME COURT. [Hinde's Lessee v. Longworth.] founded, are spread upon the record, by which it appears, that the cause of action arose before the date of the deed. If these accounts did not properly form a part of the record, according to the course and practice of the court where the judgments were entered, a specific objection should have been made to their being received in evidence, which would have led to the inquiry whether they properly formed a part of the record ; but, as the question is now presented to this court, we cannot say that these accounts arc to be stricken out of the record. They may be looked to for the purpose of showing that Doyle the elder was in debt at the date of the deed; but, whether to an extent which would avoid the deed, must depend on circumstances which are not to be inquired into by this court. There was no error, therefore, in the admission of this evidence. 3. The third exception arises on the rejection of certain depositions offered in evidence on the part of the plaintiff. The introductory part of the bill of exceptions sets out, " that after the admission of the evidence aforesaid, (the judgment records,) and in order to repel the presumption of fraud in Doyle the elder, and that he had an intention to defraud creditors by making the said deed, but to prove that Doyle the younger was the creditor of his father, the evidence was offered." The concluding part of the bill of exceptions alleges, that the depo- sitions were offered to rebut the evidence of fraud in fact, and the evidence of a fraudulent intent in the grantor, Doyle the elder. But th6 court declared their opinion to be, that the last-mentioned evidence, offered for rebutting the charge of fraud, was inadmissible, and rejected the whole of the said evidence so offered. Looking, then, as we must, to the whole bill of exceptions, to collect its true meaning and import, we must understand the evidence to have been offered for the double purpose of showing that Doyle the younger was a creditor of his father, and that by reason thereof, although the consideration in the deed purported to be natural love and affection, it could not be considered as given with intention to defraud creditors ; and, also, to rebut the evidence of fraud in fact, and to show the character and situation of Doyle the elder in point of property, at the time he executed the deed in question. If the testimony offered was admissible for either of the purposes above stated, th^ court erred in rejecting it. That the evidence was proper for the latter purpose, cannot be ques- tioned. The charge against the grantor was, that he was guilty of *2771 *f''^"*^ ■" f^^* '" making the deed to his son ; that it was done for J the express purpose of defrauding his creditors ; and it was pro- per evidence, therefore, to rebut this allegation, to show that the grantor had the means of paying his debts independent of the property con- veyed to his son. Whether the evidence would have made out that fact to the satisfaction of the jury, is not for this court to inquire. If it conduced to make out that fact, it should have been submitted to the consideration of the. jury. A deed from a parent to a child, for the consideration of love and affection, is not absolutely void as against creditors. It maybe so under certain circumstances; but the mere fact of being in debt to a small amount would not make the deed fraud- ulent, if it could be shown that the grantor was in prosperous circum- stances nnd unembarrassed, and that the gift to the child was a reason- 230 FEBRUARY TERM, 1826. 277 [Hinde's Lessee v. Longwortb.] able provision according to his state and condition in life, and leaving enough for the payment of the debts of the grantor. The want of a valuable consideration may be a badge of fraud ; but it is only pre- sumptive, and not conclusive evidence of it, and may be met and re- butted by evidence on the other side. The evidence offered to show that Doyle the elder was indebted to his son to an amount equal to the value of the property conveyed to him, was declared also to be for the purpose of repelling the presumption of fraud in fact, and to show that there could have been no such intention to defraud his creditors, by putting his property out of their reach without receiving any real and adequate consideration for it. Doyle the elder might have sOld the land to his son, or to a stranger, for a valuable consideration, and given a good title for the same, although his debts might have been double in amount to the value of his property, unless his creditors had acquired a lien upon it. It would have been no fraud in judgment of law against his creditors, for him to have paid one and left the others unpaid. Had the evidence been offered for the purpose of showing that the deed was given for a valuable consideration, and in satisfaction of the debt due from the father to the son, and not for the consideration of love and affection, as expressed in the deed, it might well be considered as con- tradicting the deed. It would then be substituting a valuable for a good consideration, and a violation of the well-settled rule of law, that parol evidence is inadmissible to annul or substantially vary a written agreement. But that was not the object for which the evidence was offered, or the effect it was intended it should have. It could not, in any respect, vary or alter the deed, or give to it a different construction or operation between the parties to it. The defendant had attempted to invalidate the deed by going into proof of circumstances out of the instrument *itself, and unconnected with it, and which circumstances, it was r^owo contended, showed a fraudulent intention in the grantor, in con- •- veying the lot in question to his son. And the evidence of the father's being indebted to the son was to meet and repel the presumption of fraud which was attempted to be raised against the deed by reason of such extrinsic circumstances. The evidence which has been admitted to show the fraud, and that which was offered to rebut it, related to collateral and independent facts unconnected with the deed, and could not, therefore, in any manner, vary or alter its terms. The third exception was accordingly well taken. The judgment of the court below must therefore be reversed, and the cause remanded, with directions to issue a venire de novo. Acknowledgment of deeds. See notes of cases, I Cond. Rep. 478. The privy examination and acknowledgment of a deed by a leme covert, so as to pass 4ier estate, cannot be legally proved by parol testimony. Elliott et al. v. Peirsol et al., 1 Peters, 338. In Virginia and Kentucky, the modes of conveyance by fine and common recovery have never been in common use ; and, in these states, the capacity of a feme covert to convey ber estate by deed is the creature of the statute law ; and to make her deed effectual, the forms and solemnities prescribed by the statutes must be pursued. Ibid, By the Virginia statute of 1748, "when any deed has been acknowledged by a feme covert, and no record made of her privy examination, such deed is not binding upon the feme and her heirs." This law was adopted by Kentucky at her separation from Virgini-.i, and is understood never to have been repealed. Ibid. 231 278 SUPREME COURT. [Hinde's Lessee o. Longworth.] The provisions of the laws of Kentucky relative to the privy examination of a feme covert, in order to make a conveyance of her estate valid. Ibid. It is the construction of the act of 1810 that the clerks of the county court of Kentucky have authority to take acknowledgments and privy examinations of femes coverts, in all cases of deeds made by them and their husbands. Ibid. What the law requires to be done and appear of record, can only be done and made to appear by the record itself, or an exemplification of it. It is perfectly immaterial whether there be an acknowledgment or privy examination in form, or not, if there be no record made of the privy examination ; for, by the express provisions of the law, it is not the fact of privy examination only, but the recording of the fact, which makes the deed effectual to pass the estate of a feme covert. Ibid. A deed from baron and feme of lands in the state of Kentucky, executed to a third person, by which the land of the feme was intended to be conveyed for the purpose of a reconveyance to the husband, and thus to vest in him the estate of the wife ; was endorsed by the clerk of Woodford county court, " acknowledged by James Elliott and Sarah G. Elliott, September 1 1th, 1816," and was certified as follows: — "Attest, J. M'Kenhet, Juw., Clerk." "Woodford county, ss. September 11th, 1813. This deed from James Elliott and Sarah G. Elliott his wife to Benjamin Elliott, was this day produced before me, and acknowledged by said James and Sarah to be their act and deed, and the same is duly recorded. John M'Kehnet, Juir., C. C. C." Held, that subsequent proceedings of the court of Woodford county, by which the defects of the certificate of the clerk to state the privy examination of the feme, (which, by the laws of Kentiicky, is necessary to make a conveyance of the estate of a feme covert legal,) #07Q1 ™^™ 'intended to be cured upon evidence that the privy examination was made by the '■'J clerk, will not supply the defect, or give validity to the deed. Ibid. The provisions of the laws of Kentucky relative to the acknowledgment of deeds. Ibid. Peters's Digest, « Acknowledgment of Deeds." Voluntary conveyances. Frauduknt as to areditort. A conveyance, on the eve of bankruptcy, to give a preference to a particular class of cre- ditors, is a fraud on the bankrupt laws, and void. Harrison v. Sterry et ah, 5 Cranch, 289, 2 Cond. Rep. 260. Such assignment may be valid to secure money actually advanced on the credit of it, sub- sequent to its date. Ibid. 301. Fraud consists in intention, and that intention must be averred in a plea of fraud. Moss v. Riddle et al, 5 Cranch, 351, 2 Cond. Rep. 277. A deed made upon an fidequate and valuable consideration, which is actually paid, and the change of property is bona fide, or such as it purports to be, cannot be considered as a con- veyance to defraud creditors. Wheaton v. Sexton's lessee, 4 Wheat. 503, 4 Cond. Rep. 519. But any unlawful consideration, moving from the preferred creditor, to induce this preference, may avoid the deed which gives it. Ibid. It is not necessary to the validity of such a deed that the creditors, for whose benefit it is made, should have notice of the execution of the deed, provided they afterwards assent to the provisions made for their benefit. Ibid. Nor is it an objection to the validity of the deed, that it was made by the grantor, in the hope and expectation that it would prevent a prosecution for a felony, connected with his transactions with his creditors, if the favoured creditors had done nothing to excite that hope, and the deed was not made with their concurrence and with a knowledge of the motives which actuated the grantor, and was not afterwards assented to by them under some express or im- plied engagement to suppress the prosecution. Ibid. Nor will it be invalidated by the fact, that the trustee to whom the conveyance is made, being the father-in-law of the debtor, received the conveyance with the view of concealing the felony, and preventing a prosecution of his son-in-law, provided it was not executed with the concurrence of the cestuis que trust, and a knowledge, on their part, of the motives which induced the trustee, or was not afterwards assented to by them under some engagement to suppress the prosecution. Ibid. The statute 13 Eliz. c. 5,, makes void as against previous creditors every conveyance not made on consideration deemed valuable in law. Sexton v. Wheaton et ux., 8 Wheat. 229, 5 Cond. Rep. 419. But a voluntary settlement in favour of a wife and children is not impeachable on that ground alone by subsequent creditors. Ibid. The court set aside a conveyance whitih had been made to defeat the claims of creditors. Venable et al. v. The Bank of the United States, 2 Peters, 107. 232 FEBRUARY TERM, 1826. 279 [Littlepage v. Fowler.] In proceedings to set aside a conveyance of real estate, made in fraud of tlie rights of cre- ditors, it is not necessary to make a mortgagee of the estate a party ; his rights under the mortgage not being brought into question. Ibid. A conveyance of the whole of his property by a husband to trustees, for the benefit of his wife and his issue, is a voluntary conveyance ; and is at this day held by the courts 'of Eng- land to be absolutely void under the statute of the twenty-seventh of Elizabeth, against a sub- sequent purchaser, even although he purchased with notice. These decisions do not maintain that a transaction valid at the time is rendered invalid by the subsequent act of the party. They " do not maintain that the character of the transaction is changed ; but that testimony afterwards furnished may prove its real character. The subsequent sale of the property is carried back to the deed of settlement, and considered *as proving that deed to have been executed r^tnon with a fraudulent intent to deceive a subsequent purchaser. Cathcart et at, v. L ■*^" Robinson, 5 Peters, 264. A subsequent sale, without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burden of proving that it was made bona fide. This principle, therefore, according to the uniform course of this court, must be adapted in construing the statute of 27 Elizabeth, as it applies to this case. Ibid. Ijittlepage v. Fowler and others. 11 WAeaion's Reports, 215. The following entry is invalid, for want of that certainty and precision which the local laws and decisions require: "January 27, 1783. J. C. L. enters twenty thousand acres of land on twenty treasury warrants, No. 8,859, &c., beginning at the mouth of a creek falling into the main fork of Licking, on the north side, below some cedar cliSs, and about thirty-five miles above the Upper Blue Licks, and running from said beginning up the north side of Licking, and bounding with the same as far as will amount to ten miles when reduced to a straight line, thence extending from each end of said reduced line, a northerly course at right angles to the same for quantity." General rule as to the validity of entries. [See note at the end of the case.] On what principle is the distance called for to be computed ? Examination of the cases on this subject. Distance indicated by a road. Distances specified on water-courses. THIS cause was argued by Mr. Bibb, for the appellant ; and by Mr. Talbot, for the respondent. Cases cited for the appellant: Pannel v. Johnson, 2 Wheat. Rep. 211, 4 Cond. Rep. 84 Hite v. Graham, 2 Bibb Rep. 143. White v. Wilson, 3 Bibb Rep. 542. Whitaker v. Hall, 1 Bibb Rep. 79. Bod- ley t). Taylor, 5 Cranch's Rep. 224, 2 Cond. Rep. 227. M'Gee v. Thompson, 1 Bibb Rep. 132. Marshall v. Curxie, 4 Cranch's Rep. 176, 177, 2 Cond. Rep. 72. Bush v. Todd, 1 Bibb Rep. 64. Whitaker v. Hale, 1 Bibb Rep. 73. Roberts v. Huff, Hardin's Rep. 382. Taylor v. Kincaid, Hardin's Rep. 82. Bowman v. Mellin, 3 Bibb Rap. 153. The respondent's counsel cited : Hite v. Graham, 2 Bibb Rep. 144. M'Kee v. Bodley, 2 Bibb Rep. 482. Whitaker v. Hale, 1 Bibb Rep. 79. Craig v. Hawkins, 1 Bibb Rep. 53. Smith v. Walton, 3 Bibb Rep. 153. Garland v. Rowland, 3 Bihb Rep. 127. Webb v. Bedford, Vol. VI.— 30 u2 233 liSl SUPREME COURT. [Liltlepage v. Fowler.] *28n *^ ^^^ ^^P' ^^^' ^''^^""P *>■ Lyne, 2 Bibb Rep. 37. Mercer J V. Irvins, 2 £i6& J?e/>. 471. Landrum v. Hite, 1 Marsh. Kentuck. Rep. 419. Bartas v. Calhoun, 2 Marsh. Kentuck. Rep. 169. Mr. Justice Johnson delivered the opinion of the court. This cause comes up by appeal from the circuit court of Kentucky, in which the appellant filed his bill to compel the defendants to convey to him twenty thousand acres of land in right of a prior entry. The defendants, having obtained the prior patent, relied upon their prior legal rights ; and, on the hearing below, the bill was dismissed. The entry on which the complainants relied was in these words : " January 27, 1783. John Carter Littlepage enters twenty thousand acres of land on twenty treasury warrants. No. 8,859, &c., beginning at the mouth of a creek falling into the main fork of Licking on the north side below some cedar cliffs, and about thirty-five miles above the Upper Blue Lick, and running from said beginning up the north side of Licking, and bending with the same, as far as will amount to ten miles when reduced to a straight line, thence extending from each end of said reduced line in a northwardly course at right angles to the same for quantity." The only question in the cause is, whether this entry contains that legal precision which the land laws of Kentucky require to make an entry a valid appropriation of the land. For the defendants, it is con- tended, that it is vague, and calculated either to mislead a subsequent locater, or impose upon him an unreasonable labour in the effort to identify it. On this subject, the rule of the law of that state, and the rule of rea- son, is, that the objects called for to designate the land appropriated, should be specific ; and, if not notorious in themselves, that they should be so indicated with reference to those which are notorious, as to enable a subsequent locater to discover and identify them by using ordinary diligence. The locative calls in this cause are, a creek emptying into the main fork of Licking on the north side below some cedar cliffs. It is not pretended, that these objects have the attribute of notoriety, and, in order to lead to their discovery, the subsequent locater is referred to the main branch of Licking river, and the Upper Blue Lick, which are notorious, and to the position and distance of the beginning point of the entry, with reference to the lick and the river. A subsequent locater, then, having this entry in his hand, and pro- posing to appropriate the adjacent residuum, proceeds to the lick as his starting point ; when there, he knows that the land lies above him with *2891 *'"eference to the river, upon the river bank, and, in the lan- -■ guage of the entry, " about thirty-five miles above the Upper Blue Lick." The first question which then occurs to him, is that which has con- stituted the principal subject of argument in this cause. Upon what principle is the distance here called for to be computed ? For the ap- pellant, it is contended, that he should pursue the meanders of the river, or the most practicable route by land ; for the appellee, that he must apply the mathematical principle to the entry, and take the shortest 934 FEBRUARY TERM, 1826. 282 [Littlepage v. Fowler.] line that can be drawn between the two points ; and both contend, that they are sustained by adjudicated cases. We have examined those cases, and are satisfied, that neither party is supported in his doctrine as a universal principle ; but that the courts of Kentucky, with that good sense which uniformly distinguishes their efforts to extricate themselves from that chaos of rights in which politi- cal relations, and inveterate practice, had involved them, have left each case to be governed by its own merits, wherever distance has been re- sorted to as the means of identifying a locative call. And certainly the sense in which the enterer uses the reference to distance, is the only general rule that can govern a court in construing an entry. That sense may be gathered from his language, or inferred from the habits of men, and the state of the country ; but, as he is responsible for the sufficiency of his entry, it would be unfair to impose an arbitrary and unusual meaning upon the language of unlettered men, exploring a country covered with thickets, and replete with dangers. For these reasons, the straight line, as the means of ascertaining a locative call, has certainly been rejected as a general rule. Such was the case in Hite v. Graham et al., 2 Bibb Rep. 144, 145. M'Kee v. Bodley, 2 Bibb Rep. 482. Whitaker v. Hale et al., 1 Bibb Rep. 79. As the method of surveying an entry, however, the meanders of a river are always reduced to a straight line, and to this class of cases are all those quoted for the appellee to be referred. Craig v. Hawkins's heirs, 1 Bihb Rep. 53, and many others. Yet, in the case of M'Kee v. Bodley, before cited, both the direction and admeasurement of a straight line are resorted to for the purpose of verifying a call lying on the side of a road. And the reason is obvious ; in that case, the shortness of the line, as well as the phraseology of the entry, rendered it admissible that the enterer referred to distance as ascertained by direct measurement. One general rule is never departed from, to wit, that when distance is indicated by a road, it shall be held to mean, by the meanders of a road. Whitaker v. Hale, supra and passim. So, also, where there is no road or trace, the most usual route, if there be proved such a route to exist, seems to be the rule. So it is laid down in Hite v. Graham et *al., in which, also, the general rule as to the sense in which the r^oo language of entries is to be received, is explicitly declared to be L " according to the popular acceptation at the time when the entry was made." And, although, in the case of White v. Wilson, 3 Bibb Rep. 542, a learned judge is reported to have said, " that there seems to be a di- versity of opinion as to the most natural construction of a locative call in an entry where a given distance, up or down a water-course, is specified," we cannot but think, that the same rules which govern the cases on the subject of distances by land, have been distinctly and ra- tionally applied to distances called for with reference to water-courses. Distances on the Ohio are invariably measured according to its me- anders. Hite V. Graham, 2 Bibb Rep. 143. Johnson v. Pannel's heirs, 2 Wheat. Rep. 207, 3 Co7id. Rep. 84. Nor is there any thing arbitrary in the rule, nor leading to a result so indefinite as the supposed distinc- tion between great and small water-courses. Their navigable character furnishes the rule by identifying them with highways, and thus the popular acceptation of terms still furnishes the distinction. This is 235 283 SUPREME COURT. [Littlepage v. Fowler.] very obvious from the case of Hite v. Graham, in which the court say, " as the Ohio is the usual way of passing from one point on it to an- other, and was, at an early day, the great highway of coming to that part of this country," &c. And, in the same case, speaking of the Little Sandy, the court observes, " this call, like that for distance on the Ohio, is not explicit as to computing it. But this stream, though like the. Ohio navigable, is not like it impassible, except occasionally; and a person, in passing from one point of it to another, is not necessa- rily confined to the winding of the stream. A direct line, however, would be impracticable to travel and use, put it out of the question as - being a way in which a call of this kind would ever be understood by any one." And thus, in the case of Bowman v. Melton, 2 Bibb Rep. 153, where the call was for thirteen or fourteen miles up a small Stream, the court observed, " it, indeed, is not probable, that the distance along the meanders of the water-course was intended, because it is believed, that it never was usual to travel with th6 meanders of a small stream to ascertain the distance of one object from another ; nor is it probable that the distance by a direct line was intended, because it would extend beyond the head of the water-course. But, it is rather to be presumed, that reputed distance was meant." Since, then, all the testimony goes to establish, that Licking, above the Upper Blue Lick, is not a navigable stream, at least not so as to be resorted to as a highway, especially for ascending navigation, it follows, that the inquiries of a subsequent locater, who wished to appropriate the residuum adjacent to this entry, or of the surveyor who had a *2841 *^^'''"^nt to survey it, would be for a creek entering into Lick- -' ing on the north side, at a distance from the lick of about thirty- five miles by some practicable route. The answer to this inquiry, as appears from the evidence, would direct him immediate to the fork of Licking. For Morrow, one of the witnesses, swears, that he could reach that point by travelling in a practicable route about thirty-five or forty miles, (p. 486 of the record,) and in a direct line it is ascer- tained to be about thirty miles. Nor would the call for the cedar cliff's be wanting here, for, it is worthy of remark, that the call is not for a cliff" adjoining, or near to, or in sight of, the mouth of the creek, but merely for a cliff" at an indefinite distance above the mouth of the creek. Whereas all the witnesses who are examined to identify the mouth of Foxe's creek, where this entry is claimed to lie, answer under the im- pression, that the cliff" is to be immediately above or adjoining the mouth of the creek. In this particular, there is much reason to believe, that Foxe's creek stands alone on the north side of Licking ; but the call is vague and indefinite on this point, since it is answered, if the creek is below the cliff's at any reasonable distance. We will now suppose the locater dissatisfied, or in doubt with regard to the object thus found, and, returning to the lick, resolved to renew his researches. The idea of finding the mouth of Foxe's creek, by fol- lowing a direct line, is out of the case, since no course is furnished him by the entry, on which to pursue his researches for this object. He must, then, either renew his inquiries for some other creek of the de- scription called for ; or, adopting the meanders of the river as his guide, pursue his way up its margin. In answer to his inquiries, it is obvious, that any creek lying between 236 FEBRUARY TERM, 1826. 284 [Littlepage v. Fowler.] the north fork of Licking and Foxe's creek, would be recommended to his examination in preference to Foxe's ; > because the latter must be farther removed from the distance of thirty-five miles than any one lying above it. If, then, the enterer intended to appropriate his laud at the mouth of Foxe's creek, it is obvious, that his call for distance is calculated to mislead, not to direct, a subsequent locater. But, as there is no evidence in the cause, of any road, trace, or ex- plored route, leading from the lick to the mouth of any of these creeks, let us suppose the explorer at liberty to take the course contended for in behalf of the appellant, and to thread his way up the meanders of the river. When he reaches the mouth of Foxe's creek, he finds him- self short of the distance called for by more than one-third of the whole, that is to say, by eleven miles. Does the cause afford any ground, or the cases any principle, which will authorize his stopping there ? The call is for a creek " about thirty-five miles" above the lick. We *are not disposed to restrict the appellant to the rigid rule for- i-^-ooc merly laid down by the courts, by which the word " about" was L rejected, and the entry limited to the number called for. In surveying entries, there is little doubt that this is the rule ; but, in measuring distances, a more liberal rule is laid down in the more modern case of Jones V. Plummer, of which we are disposed to allow the party the full benefit. 2 Littel. 162. It is in these words : " according to repeated decisions of this court under the word ' about,' the subsequent adven- turer might be required to stop a little short of, or extend the search a little beyond the distance called for." But, according to the principle of this rule, if he might stop eleven miles short, he may advance eleven miles beyond the distance called for ; and two-and-twenty miles' search, or even the half of it, on the margin of such a stream, or any stream, would be too much to require of a subsequent locater. Had the object called for had any claim to the attribute of notoriety, it might have had some greater claim to indulgence, on the principle of Taylor v. Kincaid, Hardin. Rep. 82; or, had there been proved a known and received computation of distance attributed to the object, it might have been considered with reference to the principle in Bovt- man v. Mellin, 3 Bibh Rep. 153. But there is no evidence of any received estimation of distance from the lick to the mouth of this creek; nor is there the least evidence that it took the name of Foxe's prior to the entry. On the contrary, and this furnishes another legal objection to this entry, there is evidence, that at that time, and a year before, (») it bore the name of Indian creekj and there is on the record a copy of an entry (6) made upon it by that name, in the same year, and only seven months junior to the entry of the appellants. Indeed, the time and incident that gave it the name it now bears, are positively proven to be cotemporaneous with the survey. And, finally, if resort be had to the means of testing the identity of the call admitted in M'Kee v. Bodley, to wit, course and distance in a right line, we find the test entirely fatal to the call in this instance. The course is not given, and the distance is not one-third of that called (o) John M'Intire's deposition. (i) Shephard's entry. 237 285 , SUPREME COURT. [Taylor's Devisee v. Owing. Perkins u. Hart.] for. And we farther find, that there are at least two streams on the same river which answer the call, when subjected to this test, infinitely better; to wit, that now called the north fork, but which was formerly known as an undistinguished creek, and Warwick's creek or run, the *28fil *former near thirty -five miles, and the latter twenty-seven and -' a half on a direct line from the lick. On no principle, therefore, can this entry be supported, and the de- cree below must be affirmed, with costs. Decree accordingly. Entries of land for survey and title. See notes, 4 Cond. Rep. 70. Taylor's Devisee v. Owing and others. 11 Wheaton's Reports, 226. AN entry, calling for the land to lie on the east side of Slate creekv a south-west branch of the main fork of Licking, " beginning where a buffalo road crosseth said creek at the mouth of a branch emptying into said creek at the north-east side, it being the place of beginning for S. M.'s entry of twenty thousand acres," is defective in certainty and precision ; and its defects are not aided by the reference to S. M.'s entry for " twenty thousand acres, lying on the west side of Slate creek, south-west branch of the main fork of Licking creek, beginning where the buffalo road crosses Slate creek, at the mouth of a branch, empty- ing in on the east side thereof; there are several cabins," &c. " to in- clude a large quantity of fallen timber," &c. *287] *Perkins v. Hart, Executor of Hart. 11 Wheaton's Seports,ZS7. Where there is a special agreement open and subsisting at the time the cause of action arises, a general indebitatus assumpsit cannot be maintained. [See note at the end of the case.] But, if the agreement has been wholly performed, or if its further execution has been prevented by the act of the defendant, or by the consent of both parties ; or, if the contract has been fully performed in respect to any one distinct subject included in it ; the plaintiff may recover upon a general indebitatus assumpsit. A settled account is only prima facie evidence of its correctness, at law or in equity ; it may be impeached by proof of fraud, or omission, or mistake ; and if it be confined to particular items of account, concludes nothing as to other items not stated in it. [See note at the end tf the case.] 238 FEBRUARY TERM, 1826. 287 [Perkins v. Hart.] If to a bill for an account, the defendant plead, or in his answer rely upon, a settled account, llie plaintiff may surcharge, by alleging and proving omissions in the account, or may falsify by showing errors in some of the items stated in it. The rule is the same, in principle, at law ; a settled account is only prima facie evidence of its correctness : it may be impeached by proof of unfairness or mistakes in law or fact ; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. Where a case is certified to this court upon a division of opinions of the judges below, and the points reserved, upon which they were divided, are too imperfectly stated to enable this court to pronounce any opinion upon them, this court will neither award a venire de novo, nor certify any opinion to the court below upon the paints reserved, but will merely certify that they are too imperfectly stated. [See note at the end of the case.] THIS was an action of general indebitatus assumpsit, brought in the circuit court of Ohio, for work and labour, care and diligence, by the plaintiff done and bestowed, as an agent and attorney, in exploring, showing, surveying, and selling, the lands of the defendant's testator ; also, in the searching of records, investigating titles, and in the pay- ment of the taxes of the testator. The declaration contains the other general money counts. The plaintiff also filed what is styled an addi- tional " bill of particulars," for exploring, giving information of the situation and value, superintending law-suit with Granger, attending to division with Mather's heirs, and for general superintendence of Hart's landed interest in Ohio, (except for paying taxes,) three thousand five hundred dollars. By consent of the parties the jury found a verdict for the plain- tiff of four thousand three hundred and eight dollars and seventy cents damages, if, upon the points reserved, the court should be of opinion *that the law is for the plaintiff; but if, upon the points reserved, r^naa the court should be of opinion that the law is for the defendant, •- then they find for the defendant. The opinions of the judges below being opposed, the cause was re- moved to this court upon a certificate of the disagreement, upon the three following points : 1. That the whole evidence, and Hart's (the testator's) letter of Janu- ary 14, 1812; Perkins's (the plaintifPs) letter in reply, of February 10, 1812, and Hart's letter of March 9, 1812, in reply to Perkins, con- stitute a special agreement, investing Perkins with the agency of Hart's land in the state of Ohio, open and subsisting at the time the cause of action is claimed to have arisen, which precludes Perkins from recover- ing in this action. 2. That the whole evidence, and the letters above cited, constitute a special agreement, defining the nature and extent of Perkins's agency, and settling the subjects upon which he was to receive compensation, and the amount of that compensation ; the /egal operation of which agreement is to preclude Perkins from claiming compensation for any thing done in the execution of his agency, except according to the terms of that agreement. 3. That the plaintiff cannot recover for the two items in the bill of particulars claimed and charged to have arisen as matters of account between the parties in 1814 and 1815 ; because, the plaintiff, on th6 1st of February, 1815, and 19th March, 1819, exhibited and stated his general account against William Hart, upon each of which a balance was due from, and paid by, the said William, as a settlement upon an 239 288 SUPREME COURT. [Perkins v. Hart.] account stated, which precludes the plaintiff from recovering in this action for said two items, claimed to have been due before the said accounts were rendered. In the letter of Hart (the defendant's testator) of the 14th of Janu- ary, 1812, he requested the plaintiff to give him his most favourable terms of agency, to appoint sub-agents to transact the business where he (the plaintiff) might deem necessary, with such compensation as he might agree upon vvith them. The letter then proceeded as follows : " state the amount of commissions you shall expect me to pay on ac- count of sales that shall be collected and remitted, but no commissions to be paid by me till the collections are made. Provided sales are made by me in exchange for lands, and if I should draw on you for the amount to be paid in lands at a price agreed on, or otherwise, if neces- sary, to be left with you to be ascertained ; in such case, what should you expect to charge on sales of that nature 1 Please be particular in *28Q1 *^'^^t'nS yo"'' terms of agency, and make them as favourable as J possible." In the plaintiff's letter, in reply, of February 10th, 1812, he says ; " my commission on sales made by me, the money col- lected and remitted, is eight per rent. When contracts are made, (as is sometimes the case,) purchasers make a payment, and then give up the land so as to be left without encumbrance, to be sold again, fifty per cent. On such receipt. On these two items the commission cash, as it has been cash received. In case the agency should be closed, and a settlement made, and contracts remain on hand unsettled, then, in all those contracts that should be carried into effect, five per cent, com- mission, received in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange for lands, &c., three per cent, commissions, to be received either in contracts here, on lands here at retail price. Always, as far as is practicable, receive commissions in that which shall be similar to that in which it is charged." The letter from the defendant's testator, dated the 9th of March, 1812, in reply to the plaintiff, acknowledges the receipt of the above letter, and then adds, " your observations in regard to the mode of selling new lands, are, doubtless, sanctioned by experience, and I am happy to commit the agency of my property to your experience and good judgment, from whence I expect to derive peculiar advantage." The cause was argued by Mr. Wright and Mr. Whittlesey, for the plaintiff; and by Mr. Webster and Mr. Hammond, for the defendant. Cases cited for the plaintiff: 1 Chitly's PL 333, and authorities there cited. Bank of Columbia v. Patterson, 7 Crunch's Rep. 303, 2 Cond. Rep. 501. Bull. JV. P. 139. 7 Johvs. Rep. 132, 134. 10 Johns. Rep. 37. 7 Term Rep. 181. 1 .TV. R. 357, 351. 12 Johns. Rep. 274, 531. 5 Johns. Rep. 81,72. 2 Mass. Rep. 415. Powell on Contr. 417. Dough Rep. 651. 5 Mass. Rep. 39, 391. 1 Mass. Rep. 355. 3 Johns. Rep. 199. 1 Johns. Cos. 145. 5 Ves. Rep. 87. 14 Johns. Rep. 212. 2 Term Rep. 366. 5 East's Rep. 230. 4 Johns. Rep. 377. For the defendant : Jacobson v. Le Grange, 3 Johns. Rep. 199. Com. Dig. Pleader, (2 G. 11). Manhattan Company v. Lydig, 4 Johns. Rep. 377. 2 Atk. Rep. 119. 4 Johns. Rep. 387. Mr. Justice Washington delivered the opinion of the court; and, ftfter stating the case, proceeded as follows: 240 FEBRUARY TERM, 1826. 289 [Perkins v. Hart.] The first point reserved in the court below, and on which the judges of that court were divided in opinion, consists of two propositions: 1. That upon the whole evidence, the three letters particularly referred to constitute a special agreement investing the plaintiif with the *agency of Hart's lands in Ohio; 2. That this special agreement r^nq^ was open and subsisting at the time the cause of action is claimed '- to have arisen, which .precludes the plaintiif from recovering in this action. It is not easy to understand what the defendant's counsel mean by the whole evidence. Upon examining the voluminous record sent up to this court, we find that an active correspondence was carried on be- tween Perkins and Hart from the year 1803 to 1816, upon the subject of Hart's lands in Ohio, the payment of the accruing taxes on them, examining, surveying, and preparing them for sale, and of other services to be performed by Perkins, in some way or other connected with those lands. If this be the evidence alluded to, there was no objection to submitting it to the court, to say whether the whole of this written evidence, or any part of it, created a special contract, investing Perkins with the agency of Hart's lands. But we find in this record evidence of a different character, such as accounts, receipts, and depositions, in relation to Perkins's agency re- specting Hart's lands in Ohio. If this was intended to constitute a part of the whole evidence upon which the question of law was to arise, we should be of opinion, that it was fit only for the decision of the jury, and ought not to have been submitted to the court. The disinclination which this court has always evinced, to send parties back to the court below, if, by any reasonable construction, obscure parts of the record can be explained, disposes us in the present instance to consider the verdict as referring to the written evidence, not only because it would have been improper to call upon the court to decide upon the effect of parol evidence, but because that which is spread upon this record has no apparent relevancy to the question of law which is submitted. In the examination of the question whether there was a special agree- ment or not, we shall confine ourselves entirely to the three specified letters, because, we are of opinion, after an attentive perusal of all the others, that they furnish not the slightest grounds for saying that any agreement was entered into which invested Perkins with the agency of Hart's lands. The letters addressed by Hart to Perkins, treat him as an agent impowered to perform a variety of acts in relation to the lands of the former. But it was a limited agency, created for particular pur- poses, and as occasions required, but founded upon no special agreement which bound Perkins to perform any specified duties, or Hart to remu- nerate the services he might perform, otherwise than the law bound him upon the principle of a quantum meruit. The particular agency which the former was requested, from time to time, to assume, was to pay taxes, attend to law-suits, examine the lands so as to enable Hart *to judge of their value, and to have certain lots and townships r#oni surveyed as preparatory to a sale of them at a future period. '- The taxes were annually "paid, and other advances made by Perkins, upon which he charged both a commission and interest, and these, it Vol. VI.— 31 V 241 291 SUPREME COURT. [Perkins v. Hart] would seem, were punctually reimbursed when drawn for, although the charge of interest was sonjetimes complained o£ The preparatory steps for bringing these lands, or certain portions of them, into the market, having been taken, the correspondence com- menced, which is particutorly referred to in the first and second re- served points. In Hart's letter of the Hth of January, 1812, he requests Perkins to give him his most favourable terms of agency, to appoint sub-agents to do business where he, Perkins, might judge necessary, with such com- pensation as he might agree upon with them. The letter then pro- ceeds as follows : " S.tate the amount of commissions you shall expect me to pay on amount of sales that shall be collected and remitted, but no commissions to be paid by me till the collections are made. Provided sales are made by me in exchange for Lands, and if I should draw on you for the amount to be paid in lands at a price agreed on, or other- wise, if necessary, to be left with you to be ascertained, in such case what should you expect to charge on sales of that nature ? Please be particular in stating your terms of agency, and make them as favourable as possible." In answer to this letter, Perkins writes, on the 10th of February, 1812, as follows : " my commission on sales made by me, the money collected and remitted, is eight per cent. When contracts are made, (as is some- times the ease) purchasers make a payment, and then give up the land so as to be left without encumbrance to be sold again, fifty per cent, on such receipt. On these two items the commission cash, as it has been cash received. In case the agency should be closed, and a settlement made, and contracts remain on hand unsettled, then, in all those con- tracts that should be carried into effect, five per cent, commission, re- ceived in contracts, with a conveyance of the lands covered by the contract or contracts received. On sales made in exchange for lands, &c., three per cent, commission, to be received either in contracts here, or lands here, at retail price. Always, as far as practicable, receive commissions in that which shall be similar to that in which it is charged." The letter from Hart to Perkins, dated the 9th of March in the same year, acknowledges the receipt of the above letter, and then adds, " your observations in regard to the mode of selling new lands are, doubtless, sanctioned by experience, and I am happy to commit the agency of mv *2Q21 *P'''^P®'^ty ^<> y^^^ experience and good judgment, from whence J I expect to derive peculiar advantage." These letters, we think, constitute a special agreement upon the sub- ject of commissions to be paid by Hart to Perkins, by way of compen- sation for his agency in the sale of lands. It is confined to that subject only. The first of these letters invites Perkins to state his most favour- able terms of agency in the sale of Hart's lands. The answer contains those terms by stating the commissions which he should expect to re- ceive upon sales made, and the amount collected and remitted ; upon sales made, and then abandoned by the purchaser after a partial pay- ment of the purchase-money; upon sales made, but the amount not collected before the agency should be closed ; and, finally, upon sales made by way of exchange for other property. The acceptance of these terms is sufficiently expressed in Hart's reply to this letter, by which he 242 FEBRUARY TERM, 1826. 293 . [Perkins u. Hart.] commits to Perkins the agency of his property, the nature of which agency is too clearly explained by reference to the two preceding letters, to leave the slightest doubt as to the- meaning and extent of the contract which was thus entered into. The second proposition is, " That this special agreement was open and subsisting at the time the cause of action is supposed to have arisen." Now this proposition involves a mixed question of law and fact. If the contract was open, and the action was founded on that contract, then the legal consequence insisted upon, " that Perkins can- not recover in this action," undeniably follows. But whether, in point of fact, it was open when the cause of action is claimed to have arisen, that is, in the lifetime of W. Hart, must depend upon the evidence in the cause, of which the jury were alone competent to judge. If the agreement was wholly performed by the plaintiff during the lifetime of Hart ; if its farther execution was put an end to, before its completion, by the act of Hart, or by the agreement of both parties, then the plain- tiff was not precluded from recovering in this action. Nay, further, if the contract was fully performed in relation to any one subject covered by it ; as, for example, by the sale, collection, and remittance of the purchase-money for any one township or parcel of land, the plain- tiff might well maintain an action 'of indebitatus assumpsit for his sti- pulated compensation, in cash, on that transaction, and was not bound to wait until all the lands to which his agency extended were disposed of.- Where the agreement embraces a number of distinct subjects which admit of being separately executed and closed, it must be taken distri- butively, each subject being considered as forming the matter of a sepa- rate agreement after it is so closed. If, for instance, the agreement be- tween a merchant and his factor be, that the latter shall sell and remit *the proceeds of all cargoes which the former shall consign to him r^nqo upon a stipulated commission,, it can hardly be contended, that <- the factor cannotrecover his commissions in this form of action, upon the proceeds of a single cargo which have been remitted, while there remain other cargoes yet undisposed of. But, whether this agreeinent was wholly closed, or whether any one or more of its parts were closed, in either pf the ways above mentioned, or in any other way, was a fact resting altogether upon the evidence, whether written or parol, which was, or might be, laid before the jury. It belonged exclusively to that body to say whether the fact existed or not ; and, upon the fact so found, the question of law would fairly arise. In this respect, therefore, we are of opinion, that the verdict is clearly defective, and ought to have been set aside by the court below. It may not be amiss to add, that if the question reserved were, whether the agreement was open and subsisting at the time this action was brought, we should be of opinion, that the agency of Perkins hav- ing terminated by the death of Mr. Hart, the further execution of the agreement was put an end to by that event, and that, consequently, it was not open w^en the action was brought. But the proposition is so stated as to refer to a period antecedent to the death of Hart. The second point reserved is thus expressed : " that, upon the whole evidence. Hart's letter of January 14th, 1812," and so referring to the other two letters as in the first point, " constitute a special agreement, defining the nature and extent of Perkins's agency, and settling the 243 293 SUPREME COURT. [Perkins t). Hart.] subjects upon which he was to receive compensation, and the amount of that^compensation, the legal operation of which agreement is to pre- clude Perkins from claiming compensation for any thing done in the execution of his agency, except according to the terms of that agree- ment." It has been already stated, that the three letters particularly referred to in this point, did constitute a special agreement upon the subject of commissions to be paid to Perkins by way of compensation for his agency in the sale of Hart's lands. And, it may be added, that this agreement settles the subjects upon which Perkins was to receive com- pensation, and the amount of that compensation. If so, there can be no question but that the legal operation of this agreement, as to every claim founded upon it, is to preclude Perkins from recovering any com- pensation which is not consistent with the terms of that agreement. For, although in the cases before stated, in which the special agreement has been executed, or otherwise closed, a general indebitatus assumpsit may be maintained, it is nevertheless true, that the special agreement *2941 *™^y ^^ given in evidence by the defendant for the purpose of -' lessening the quantum of damages to which the plaintiff is en- titled. But, after all this is admitted, the inference of law insisted upon by the defendant, that Perkins is precluded by the special agreement from claiming compensation for any thing done in the execution of his agency, except according to the terms of that agreement, does not fol- low. The agreement is clearly prospective, and is confined to the single subject of commissions on the sale of lands. This is apparent from Hart's letter of the I4th of January, 1812, which he prefaces by stating that he had concluded to oSer certain portions of his lands for sale at that time, and his other lands, when they should be partitioned. He desires Perkins, as his agent, to make the necessary previous arrange- ments, and to proceed in the sale of the portions before mentioned, and of No. 2, in the thirteenth range, as soon as the partition should be completed, and then he proceeds to inquire his terms of agency as before mentioned. But, when we look into the whole evidence, to which we are referred by the point reserved, it is found that the agency of Perkins commenced as early as the year 1803, and extended to a variety of duties unconnected with that of selling land ; such as exploring the lands of his principal, having them surveyed, their quality and value ascertained, investigating titles, attending to law-suits, paying taxes, and making other advances. Now, it is impossible to contend, with any probability of success, that Perkins was precluded by the special agreement from recovering, under the general counts, a compensation for those services, or, indeed, for any other services rendered by him in his character of agent, which are not strictly within the scope of the special agreement. But, the point raised here is, that he is precluded from claiming compensation for any thing done in the execution of his agency, except according to the terms of that agreement, although the services so rendered are not em- braced by it. What was the nature of the particular claim submitted to the jury, upon which the parties consented that a verdict should be given for the plaintiff, the record does not enable this court distinctly to decide. 344 FEBRUARY TERM, 1826. 294 [Perkins v. Hart.] So far as any information is to be derived from the declaration, and the additional bill of particulars, it would rather seem as if it was for general services rendered by the plaintiff without the scope of the spe- cial agreement, that being confined, as before observed, to commissions on land sales. If the paper found in this record, headed thus, "Perkins's account, on which the action is brought," which contains three items for commis- sions on as many sales of land, and three others for interest on those ♦commissions, is to be considered as the original bill of particu- i-j^qqc lars filed in the cause, it would seem to follow, that the action '- was brought to recover, as well those commissions as a compensation for general services not embraced by the special agreement. Upon this state of the case, the conclusion of law insisted upon in this point, would, nevertheless, be incorrect, for the reasons already stated. It was contended by the counsel for the defendant, that this action would not lie in a case, where, by the agreement, the plaintiff was to be compensated in land. This is not controverted. But, it will be sufficient to observe, that it is not stated in the points reserved, or in the account just referred to, (if it be admitted to be the original bill of particulars,) that the commissions there charged arose upon an exchange of lands, or were to be discharged by land. The case is too imperfectly stated to enable this court to say that it gives rise to the question to which the argument is directed. The third and last .point is thus expressed : " that the plaintiff cannot recover for the two items in the bill of particulars claimed and charged to have arisen as matters of account between the parties in 1814 and 1815, because the plaintiff, on the 1st of February, 1815, and on the 19th of March, 1816, exhibited and stated his general account against William Hart, upon each of which a balance was due from, and paid by, the said William, as a settlement upon an account stated, which precludes the plaintiff from recovering in this action, for said two items claimed to have been due before the said accounts were rendered." ■ The difficulty of this point consists in the imperfect manner in which it is stated. The court may conjecture, that the bill of particulars alluded to is the paper just referred to; but whether it be so or not is by no means certain. If it be the bill intended, the difficulty still re- mains, as the general account is not stated, or referred to, so as to enable the court to decide whether it does, or does not, include the two items which it is supposed cannot be recovered in this action. If we look through this record in order to obtain information respect- ing this matter, we meet with two accounts containing charges for advances made by Perkins, in the years 1814 and 1815, for taxes due by Hart, and in discharge of other expenses connected with his agency, both which accounts were discharged. But it surely cannot be con- tended, that the settlement and discharge of an account for money lent and advanced for the use of the testator, is a bar to a claim for com- missions, or of any other demand not incliided in the settled account. If, to a bill for an account, the defendant plead, or, in his answer, rely upon a settled account, the plaintiff may surcharge,. by alleging and *proving omissions in the account, or may falsify, by showing rjfoqfl errors in some of the items stated in it. '- The rule is the same in principle at law; a settled account is only V 2 245 296 SUPREME COURT. [Perkins v. Hart.] prima facie evidence of its correctness. It may be impeached by proof of unfairness, or mistake, in law, or in fact ; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it. The legal conclusion, therefore, insisted upon by the defendant, that the plaintiff is precluded from recovering in this action for the two items claimed to have been due before the two accounts spoken of were rendered, is not correctly drawn, unless it appeared, from the point reserved, that those two items were included in what is styled the account stated. It may further be remarked, that even if it appeared that the plain- tiff was precluded by the settlement and discharge from recovering the amount of the two items referred to, it would not follow that the law is for the defendant upon the whole verdict, although it might be sufficient to induce the court below to grant a new trial, if it had been applied for, upon the ground that the verdict was for too much. Were this cause before the court upon a writ of error, the imperfec- tions in the points reserved which have been noticed, would render it proper to reverse the judgment, and to direct a venire de novo to be avvarded. Being an adjourned case, it would be improper for this court to give any such direction to the court below. Assumpsit. Assumpsit will not lie upon ii policy of insurance under seal ^ and the defect is not c^red by verdict. Manne Insurance Gampany of Alexandria v. Yeun^, \ Cranch, 332, 1 Cond. Sep. 326. After verdict, every assumpsit alleged in the declaration, is to be taken as an express as- sumpsit. Ibid. Upon a special contract, executed on the part of the plaintiff, indebitatus assumpsit will lie for the price. Banh of Columbia v. Patterson's administrators, 7 Cranch, 299, 2 Cond. Rep. 501. The defendant having ordered the plaintiff to purchase salt for him, and to draw on him for the amount, and he having so purchased, and drawn, defendant is bound to accept and pay his bills ; and if be do not, plaintiff may recover the amount of the bills and damages and costs of protest, (if he has paid them,) upon a count for money paid, laid out, and expended, and the bills of exchange may be given .in evidence on that count. Higgs v. Lindsay, 7 Cranch, 500, 2 Cond. Rep. 585. If, after the protest of the bill^ the plaintiff sell the salt without orders, it shall not prejudice his right of action, although he render no account of sales. Ibid. Upon the Issue of non assumpsit, the defendant may give in evidence the record of a former judgment, between the same parties, on the same cause of action. Young et at. v. Black, 7 Cranch, 365, 2 Cond. Rep. 607. Under non assumpsit, defendant may give in evidence any thing which shows that no _j,_._ "debt was due at the time the action was commenced, whether it arise from an in- '^" ' J herent defect in the original promise, or a subsequent discharge and satisfaction. Ibid. In assumpsit against a consignee of goods, stating the contract to be, •< to sell the same and render a reasonable account," damages for not remitting when exchange was favourable can- not be recovered. Pope et al. v. Burret, 1 Mason, 117. In actions of assumpsit, the contract must be proved as laid, and if the undertaking be special, it must be so stated, or the variance will be fatal. Ibid. The act incorporating the Bank of the commonwealth of Kentucky contains a provision by which it is enacted, that the bank shall receive money on deposit without being required to give an obligation under seal to repay it. This enactment must be construed with regard to the practice of banking, and the general understanding of mankind ; and must create a liability to the depositor by the simple act of depositing, that is, an assumpsit in law, implied from an act in pais. The Bunk of the Commonwealth of Kentucky v. Wister et al., 2 Peters, 324. 246 FEBRUARY TERM, 1826. 297 [Armstrong ». Toler.] Upon the deposit being made in the Bank of the commonwealth of Kentucky, the cashier gave under his hand a certificate that there had been deposited to the credit of the plaintiffs below, seven thousand seven hundred and thirty dollars and eighty-one cents, which is subject to their order on presentation of this certificate. The deposit was made in the notes of the bank, and when the same were deposited, and when demand of payment was made, the notes Were passing at one-half their nominal value. When the certificate was presented to the bank, the cashier offered to pay the amount fn the notes of the bank, but they refused to receive payment in any thing but gold or silver. The language of the certificate is expressive of a general, not a specific deposit, and the act of incorporation is express, that the bank shall pay and redeem their bills in gold or silver. The transaction then was equivalent to receiving and depositing the gold or silver ; if the bank did not so understand it, they might have refused to receive it ; and the plaintiSs would certainly have recovered the gold and silver, to the amount upon the face of the bills. Ibid. The bank having oSered to pay the amount of the certificate in their bills, they put their own construction on the same, and they cannot afterwards say that the plaintiffs below should have accompanied the certificate with a check. Ibid, When money of the United States has been received by one public agent from another public agent, whether it was received in an official or private capacity, there can be no donbt but that it was received to the use of the United States ; and they may maintain an action of assumpsit against the receiver for the same. The United States v, Buford, 3 Peters, 28. Every thing which disaffirms the contract; every thing which shows it to be void ; may be given in evidence on the general issue, in an action of assumpsit Craig et al. v. TTte State of Missouri, 4 Peters, 436. Acceunl. If an account stated be pleaded in bar to a bill in equity, such plea will be sustained, ex- cept so far as the complainant shall show it to be erroneous. Chappedelaine et aU v. Deehe- naux, 4 Cranch, 306, 2 Cond. Rep. 116. A promissory note, given and received for and in discharge of an open account, is a bar to an action upon the open account, although the note be not paid. Shechy v, Mandeville et al., 6 Cranch, 253, 2 Cond. Rep. 362. An account current sent by a foreign merchant to a merchant in this country, and not objected to for two years, is deemed an account stated, and throws the burden of proof upon him who received and kept it without objection. Freeland v. Heron et al., 7 Cranch, 147, 2 Cond. Rep. 449. If defendant relies upon the credit side of plaintifTs account to establish his claim, he admits, prima facie at least, the debit side of the account, if it is composed of items which "by the form of the plaintifTs action he could recover upon; but if such be not the r.ii,nQQ form of action, the plaintiff may nevertheless use such debits to defeat or diminish L ■*''° the credits claimed by defendant, when the one can be legally opposed to the other. Craig V. Brown, Wash. C. C. Rep. For the cases decided relative to the removal of causes where the circuit court is divided. See notes, 5 Cond. Rep. 172. Armstrong, Plaintiff in error, v. Toler, Defendant in error 11 Wheaton's Reports, 258. Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it. [See note at the end of the case,] So, if the contract be in part only connected with the illegal consideration, and growing im- mediately out of it, though it be, in fact, a new contract, it is equally tainted by it. But if the promise be entirely disconnected with the illegal act, and is founded on a new con- 247 298 SUPREME CC-URT. [Armstrong v. Toler.] sideration, it is not affected by the act, although it was Iinown to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, where A, during a war, contrived a plan for importing goods on his own account from the enemy's country, and goods were sent to B by the same vessel: A, at the request of B, became surety for the payment of the duties on B's goods, and became responsible for the expenses on a prosecution for the illegal importation of the goods, and ,was compelled to pay them : held, that A might maintain an action on the promise of B to refund the money. ■ But if the importation is the result of a scheme between the plaintiff and defendant, or if the plaintiff has any interest in the goods, or if they are consigned to him with his privity, in order that he may protect them for the owner, a promise to repay any advances made under such understanding or agreement is utterly void. General principle as to illegality of contracts, and distinctions by which it is limited. The authorities on this subject reviewed. Inconvenience of the practice of bringing the whole evidence, instead of the facts, for review before this court. The party cannot, by such a practice, take advantage of any omission in the judge's charge under a general exception to it. If he wishes the instruction of the jourt to the jury on any point omitted in the charge, be must suggest it, and request the judge's opinion on it. ERROR to the circuit court of Pennsylvania. This was an actipn of assumpsit, brought by the defendant in error, Toier, against the plaintiff in error, Armstrong, to recover a sum of *2QQ1 *'"*''''^y P^^^ ^y Toler on account of goods, the property of Arm- ■^ strong and others, consigned to Toler, which had been seized and libelled in the district court of Maine, in the year 1814, as having been imported contrary to law. The goods were shipped during the late war with Great Britain, at St. Johns, in the province of New Brunswick, for Armstrong and other citizens and residents of the United States, and consigned to Toler, also a domiciled citizen of the United States. The goods were delivered to the agent of the claimants on stipulation to abide the event of the suit, Toler becoming liable for the appraised value ; and Armstrong's part of the goods were afterwards delivered to him, on his promise to pay Toler his proportion of any sum for which Toler might be liable, should the goods be condemned. The! goods having been condemned, Toler paid their appraised value, and brought this action to recover back from Armstrong his proportion of the amount. At the trial of the cause, the defendant below resisted the demand, on the principle that the contract was void, as having been made on an illegal consideration. When the testimony on the part of the plaintiff below was concluded, the counsel for the defendant insisted on his behalf to the court, that the several matters propounded and given in evidence on the part of the plaintiff were not sufficient, and ought not to be allowed, as decisive evidence to entitle the plaintiff to maintain the issue and to recover against the defendant. The judge thereupon delivered the following charge to the jury, which is spread at large upon the record. " The rule of law under which the defendant seeks to shelter him- self against a compliance with his contract to indemnify the plaintiff for all sums which he might have to pay on account of the goods shipped from New Brunswick for the defendant, and consigned to the plaintiff, is a salutary one, founded in morality and good policy, and which recommends itself to the good sense of every man as soon as it is stated. The principle of the rule is, that no man ought to be heard in a court of justice, who seeks to enforce a contract founded in or aris- 248 ^ FEBRUARY TERM, 1826. 299 [Armstrong v. Tolor.] ing out of moral or political turpitude. The rule itself has sometimes been carried to inconvenient lengths ; the difficulty being, not in any unsoundness in the rule itself, but in its fitness to the particular cases to which it has been applied. Does the taint in the original transac- tion infect and vitiate every contract growing out of it, however re- motely connected with it ? This would be to extend the rule beyond the policy which produced it, and would lead to the most inconvenient consequences ; carried out to such an extent, it would deserve to be entitled a rule to encourage and protect fraud. So far as the rule ppe- rates to discourage the perpetration of an immoral or illegal act, it is *founded in the strongest reason ; but it cannot safely be pushed r^..irvr^ farther. If, for example, the man who imports goods for an- ^ other, by means of a violation of the laws of his country, is disqualified from founding any action upon such illegal transaction for the value or freight of the goods, or other advances made on them, he is justly pun- ished for the immorality of the act, and a powerful discouragement from the perpetration of it is provided by the rule. But, after the act is accomplished, no new contract ought to be afiected by it ; it ought not to vitiate the contract of the retail merchant, who buys these goods from the importer ; that of the tailor, who purchases from the mer- chant; or of the customers of theTormer, amongst whom the goods are distributed in clothing, although the illegality of the original act was known to each of the above persons at the time he contracted. " I understand the rule, as now clearly settled, to be, that where the contract grows immediately out of and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. And if the contract be in part only connected with the illegal transaction, and growing immediately out of it, though it be, in fact, a new con- tract, it is equally tainted by it. The case before supposed, of an action for the value of goods illegally imported for another, or freight and ex- penses attending, founded upon a promise express or implied, exemplifies a part of the above rule ; the latter part of it may be explained by the following case : as if the importation was the result of a scheme to con- sign the goods to the friend of the owner, with the privity of the former, that he might protect and defend them for the owner in case they should be brought into jeopardy, I should consider a bond or promise afterwards given by the owner to his friend, to indemnify him for his advances on account of any proceedings against the property or other- wise, to constitute a part of the res gesta, or of the original transac- tion, though it purports to be a new contract. For it would clearly be a promise growing immediately out of, and connected with, the illegal transaction. It would be, in fact, all one transaction ; and the party to whom the promise was made would, by such a contrivance, contri- bute, in effect, to the success of the illegal measure. " But if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, if A should, during war, contrive a plan for importing goods from the coun- try of the enemy, on his own account, by means of smuggling, or of a collusive capture, and in the same vessel should be sent goods for B ; and A should, upon the request of B, become surety for payment of Vol. VI. — 32 249 301 SUPREME COURT. [Armstrong v. Toler.] *3011 *^^^ duties, or should undertake to become answerable for ex- ^ penses on account of a prosecution for the illegal importation, or should advance money to B to enable him to pay those expenses ; these acts constituting no part of the original scheme, here would be a new contract upon a valid and legal consideration, unconnected with the original act, although remotely caused by it; and such contract would not be so contaminated by the turpitude of the offensive act, as to turn A out of court when seeking to enforce it, although the illegal introduc- tion of the goods into the country was the consequence of the scheme projected by A in relation to his own goods. " Whether the plaintiff has any interest in the goods imported by the defendant from New Brunswick, or was the contriver of, or concerned in, a scheme to introduce these goods, or even his own, if he had any, into the United States, by means of a collusive capture or otherwise, or consented to become the consignee of the defendant's goods, with a view to their introduction, are questions which must depend upon the evidence, of which you must judge. It ought, however, to be remembered, that it would seem, from the lettiers of introduction of the defendant to the plaintiff, some time after this importation had taken place, that these gentlemen were, at that timfe, strangers to each other." And the jurors having submitted to the court an inquiry, in the words following, viz. " The jury beg leave to ask the judge, whether Toler must have an interest in Armstrong's goods to constitute him a partici- pator in the voyage ? If simply having goods on board will constitute him such ?" The court gave trieir Opinion upon the same as follows : " The plaintiff simply having goods on board would not constitute him a participatory or affect the contract with the defendant. Being inte- rested in the goods would." This charge was excepted to by the defendant, and a. verdict having been found for the plaintiff, on whiteh a judgment was rendered in his favour, the cause was brought, by writ of error, to this court. Mr. Webster and Mr. Wbeaton, for the plaintiff in error, cited : The George, I Wheat. Rep. 408, 3 Cond. Rep. 608. The George, 2 Wheat. Rep. 278, 4 Cond. Rep. 119. Collins v. Blantern, 2 Wils. Rep. 347. Holman v. Johnson, Cowjp. Rep. 341. Biggs v. Lawrence, 3 Term Rep. 454. Clugas v. Penaluna, 4 Term Rep. 466. Steers v. Laishley, 6 Term Rep. 61. Booth v. Hodgson, 6 Term Rep. 405. Waymell v. Reed, 5 Term Rep. 599. Ex parte Mather, 3 Ves. Jun. Rep. 373. Rib- bans V. Crickett, 1 Bos. and Pull. 264. Lightfoot v. Tenant, 1 Bos. and Pull. 551. Aubert v. Maze, 2 Bos. and Pull. 371. Shirley v. Sankey, 2 Bos. and Pull. 130. Thompson v. Thompson, 7 Ves. Rep. 470. Ex parte Daniels, 14 Ves. Rep. 191. Ex parte Bell, 1 Maul, and Selw. 751. „„oi *Cooth V. Jackson, 6 Ves. Rep. 11. Branton v. Taddy, 1 Taunt. '*"'^-l Rep. 6. Edgar v. Fowler, 3 East's Rep. 222. Morck v. Abel, 3 Bo.i. and Pull. 45. Blachford v. Preston, 8 Term Rep. 89. Gallini V. Laborie, 5 Term Rep. 242. Sullivan v. Greaves, Park. Ins. 8. Mitchell I). Cockburn, 2 H. Bl. Rep. 379. Canaan v. Bryce, 3 Barnw. and Aid. 179. Duncanson v. M'Clure, 4 Dall Rep. 308. Hunt v. Knickerbocker, 5 Johns. Rep. 327. Whitaker v. Cone, 2 Johns. Cas. 58. Belding v. Pitkin, 2 Johns. Ch. 147. Graves v. Delaplaine, 14 Johns. Rep. 146. Griswold v. Waddington, 16 Johns. Rep. 438. Richardson v. Marine Ins. Co., 6 Mass. Rep. 111. Russell v. De Grand, 250 *: FEBRUARY TERM, 1826. 302 [Armstrong v. Toler.] 15 Mass. Rep. 35. Wheeler v. Russel, 17 Mass. Rep. 281. Musson v. Frales, 16 Mass. Rep. 334. Frales v. Mayberry, 2 Gallis. Rep. 560. Hannay v. Eve, 3 Crunch's Rep. 242, 1 Cond. Rep. 512. Patton v. Nicholson, 3 Wheat. Rep. 204, 4 Cond. Rep. 235. Mi tchel v. Smith, 4 Ball. Rep. 269. Mitchel v. Smith, 1 Binn. Rep. 110. Maybin v. Coulon, 4 DaZZ. /?ep. 298. Biddis v. James, 6 Binn. Rep. 321. Coulon v. Anthony, 4 Yeates, 24. Polhier, Des Obligations, No. 43 — 45. Des Assurances, No. 58. Emerigon, Des Ass. torn. 1, p. 211. Mr. C. J. Ingersoll, for the defendant, cited : Faikney v. Reynous, 4 Burr. Rep. 2069. Petrie v. Hannay, 3 Term Rep. 418. Farmer v. Russel, 1 Bos. and Pull. 295. Tenant v. Eliot, 1 Bos. and Pull. 3. Lloyd V. Johnson, 1 Bos. and Pull. 340. Watts v. Brooks, 3 Ve.s. Jun. Rep. 612. Bird v. Appleton, 8 Term Rep. 562. Ex parte Bulmer, 13 Ves. Rep. 313. Sewell v. Royal Exch. Co. 4 Taunt. Rep. 850. Hodgson V. Temple, 5 Taunt. Rep. 181. Haines v. Busk, 5 Taunt. Rep. 521. Simpson v. Bloss, 7 Taunt. Rep. 246. Antoine v. Morshead, 6 Taunt. Rep. 237. Antoine v. Morshead, 1 Marsh Rep. 561. Danbroz V. Morshead, 6 Taura. Rep. 332. Willison v. Pattison, 7 Taunt. Rep. 439. Evans v. Richardson, 3 Meriv. Rep. 469. Edwards v. Dick, 4 Barnio. and Aid. 211. Woodhouse v. Meredith, 1 Jac. and Walk. 204. Whiltingham v. Bourgoyne, 3 Andsr. 900. Booth v. Jackson, 6 Ves. Rep. 12. Edgar v. Fowler, 3 East's Rep. 222. Bensley v. Bingold, 5 Barnvt. and Aid. 335. Johnson v. Hudson, 11 East's Rep. 180. Gross V. Lapage, 1 Holt's JV. P. Rep. 105, 107, and cases collected in note. Hedley v. Lapage, 1 Holt's JV. P. Rep. 392. Duhamel v. Pickering, 2 Stark. JV. P. Rep. 90. Stokes v. Twitcher, 8 Taunt. Rep. 492. Goto on Partnership, 105. 2 Evans's Pothier, Appendix^ No. 1, p. 8. 1 Fonbl. Eg. h. 1, c. 4, s. 4, note y. Puffend, 1. 3, c. 7, s. 9, note 3. Mr. Chief Justice Marshall delivered the opinion of the court ; and, after stating the case, proceeded as follows : The only point moved by the defendant's counsel to the court, was, *that the evidence was not decisive in favour of the plaintiff. r#ono The court gave this opinion. The charge does not intimate that L the testimony was conclusive, but leaves the case to the jury to be de- cided by them under the control of certain legal principles which are stated in the charge. To entitle the plaintiff in error to a judgment of reversal, he must show that some one of these principles is erroneous to his prejudice. The main object of the charge iB to state to the jury the law of contracts on an illegal consideration, so far as it was supposed to bear on the case before them. To enable them to apply the law to the facts, the court supposed many cases in which the contract would be void, the consideration being illegal. It is unnecessary to review this part of the charge, because it is entirely favourable to the plaintiff in error. After having stated the law to be, that where the contract grows immediately out of an illegal act, a court of justice will not enforce it, the court proceeds to say, " but if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, if A should, during war, contrive a plan for import- 251 SOS SUPREME COURT. [Armstrong v. Toler.] ing goods from the country of the enemy, on his own account, by means of smuggling, or of a collusive capture, and goods should be sent in the same vessel for B; and A should, upon the request of B, become surety for the payment of the duties, or should undertake to become answera- ble for the expenses on account of a prosecution for illegal importation, or should advance money to B to enable him to pay those expenses; these acts constituting no part of the original scheme, here would be a new contract upon a valid and legal consideration, unconnected with the original act, although remotely caused by it, and such contract would not be so contaminated by the turpitude of the offensive act, as to turn A out of bourt when seeking to enforce it; although the illegal introduction of the goods into the country was the consequence of the scheme projected by A in relation to his own goods. If this opinion be contrary to law, the judgment ought to be reversed. The opinion is, that a new contract, founded on a new consideration, although in relation to property respecting which there had been un- lawful transactions between the parties, is not itself unlawful. This general proposition is illustrated by particular examples, and will be best understood by considering the examples themselves. The case supposed is, that A, during a war, contrives a plan for importing goods on his own account from the country of the enemy, and that goods are sent to B by the same vessel. A, at the request of B, becomes surety *^041 *^"^'" ^^^ payment of the duties which accrue on the goods of B, -I and is compelled to pay them; can he maintain an action on the promise of B to return this moneyT The opinion is, that such an ac- tion may be sustained. The case does not suppose A to be concerned, or in any manner instrumental in promoting the illegal importation of B, but to have been merely engaged himself in a similar illegal trans- action, and to have devised the plan for himself, which B afterwards adopted. This illustration explains what was meant by the general words previously used, which, unexplained, would have been excep- tionable. The contract made with the government for the payment of duties, is a substantive independent contract, entirely distinct from the unlaw- ful importation. The consideration is not infected with the vice of the importation. If the amount of duties be paid by A for B, it is the pay- ment of a debt due in good faith from B to the government; and if it may not constitute the consideration of a promise to repay it, the reason must be, that two persons who are separately engaged in an unlawful trade, can make no contract with each other; at any rate, no contract, which, in any manner, respects the goods unlawfully imported by either of them. This would be, to connect distinct and independent transac- tions with each other, and to infuse into one which was perfectly fair and legal in itself, the contaminating matter which infected the other. This would introduce extensive mischief into the ordinary affairs and trnnsuctions of life, not compensated by any one accompanying advan- tage. The same principle, diversified in form, is illustrated by another ex- ample. If A should become answerable fbr expenses on account of a prosecution for the illegal importation, or should advance money to B to enable him to pay those expenses, these acts, the court thought, would 252 FEBRUARY TERM, 1826. 304 [Armstrong ». Toler.] constitute a new contract, the consideration of which would be sufficient to maintain an action. It cannot be questioned that, however strongly the law may denounce the crime of importing goods from the enemy in time of war, the act of defending a prosecution instituted in consequence of such illegal im- portation is perfectly lawful. Money advanced then by a friend in such a case, is advanced for a lawful purpose, and a promise to repay' it is made on a lawful consideration. The criminal importation consti- tutes no part of this consideration. It is laid down with great clearness; that if the importation was the result of a scheme between the plaintiff and defendant, or if the plain- tiff had any interest in the goods, or if they were consigned to him with his privity, that he might protect and defend them for the owner, *a bond or promise, given to repay any advances made in pur- r-j^onr suance of such understanding or agreement, would be utterly L void. The questions whether the plaintiff had any interest in the goods of the defendant, or was the contriver of, or concerned in, a scheme to introduce them, or consented to become the consignee of the defend- ant's goods, with a view to their introduction, were left to the jury. The point of law decided is, that a subsequent independent contract founded on a new consideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler, when the contract was made, provided he was not interested in the goods, and had no previous concern in their importation. Questions upon illegal contracts have arisen very often, both in Eng- land and in this country ; and no principle is better settled, than that no action can be maintained on a contract, the consideration of which is either wicked in itself, or prohibited by law. How far this principle is to affect subsequent or collateral contracts, the direct and imme- diate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen, and many decisions have been made. In Faikney v. Reynous, 4 Burr. 2069, the plaintiff and one Richardson were jointly concerned in cer- tain contracts prohibited by law, on which a loss was sustained, the whole of which was paid by the plaintiffs ; and a bond was given for securing the repayment of Richardson's pfoporti(jn of the loss. To a suit on this bond, the defendants pleaded the statute prohibiting the origina:l transaction, but the court held, on demurrer, that the plaintiff was entitled to recover. Although this was the case of a bond, the judgment does not appear to have turned on that circumstance. Lord Mansfield gave his opinion on the general ground, that if one person apply to another to pay his debt, (whether contracted on the score of usury, or for any other purpose,) he is entitled to recover it back again. This is a strong case to show that a subsequent contract, not stipulat- ing a prohibited act, although for money advanced in satisfaction of an unlawful transaction, may be sustained in a court of justice. In a subsequent case, 6 Term Rep. 410, Ashhurst, J., said, the defendants were held liable because they had voluntarily given another security. In the case of Petrie and another, executors of Keeble v. Hannay, 3 Term Rep. 418, the testator of the plaintiffs was engaged with the defendant and others in stock transactions, which were forbidden by W 253 305 SUPREME COURT. [Armstrong v. Tolen] law, on which considerable losses had been sustained, yjhich were paid by Portis, their broker. Keeble repaid the broker the whole sum advanced by him except eighty-four pounds, which was, in part, the defendant's share of the loss, for which Keeble drew a bill on the de- *3061 ^^"'^^it, *which was accepted. The bill not being paid, a suit -' was brought upon it by Portis against the executors of Keeble, and judgment obtained^ they not setting up the illegal consideration. The executors brought this action to recover the money they had paid, and it was held by three judges against one, on the authority of Faik- ney v. Reynous, that the plaintiffs could maintain their action. A dis- tinction was taken in cases where money was paid by one person for another, for an illegal transaction, by which the parties were not bound ; between a voluntary payment, and one made on the request of the party; between an assumpsit raised by operation of law, and an ex- press assumpsit. Although the former would not support the action, it was held that the latter would. This, also, is a strong case to show that a new contract, by- which money is advanced, at the request of another, or, which is the same thing, where there is an express promise to pay, may sustain an action, although the money was advanced to satisfy an illegal claim. In Farmer v. Russell et al., 1 Bos. and Pull. 295, it was held, that if A is indebted to B on a contract forbidden by law, and pays the money to C for the use of B, a court will give judgment in favour of B against C for this money. In this case, B could not have recovered against A, but when the money came into the hands of C, a new pro- mise was raised on a new consideration, which was not infected by the vice of the original contract. In this case, chief justice Eyre said, that the plaintiff's demand arose simply from the circumstance, that money was put into the hands of C for his use ; and justice Buller said, that the action did not arise ypon the ground of the illegal contract. Yet, in this case, A's original title to the money was founded on an un- lawful contract, and he could not have maintained an action against B. The general proposition stated by lord Mansfield in Faikney v. Rey- nous, that if one person pay the debt of another at his request, an action may be sustained to recover the money, although the original contract was unlawful, goes far in deciding the question now before the court. That the person who .paid the money knew it was paid in discharge of a debt not recoverable at law, has never been held to alter the case. A subsequent express promise is, undoubtedly, equivalent to a previous request. In most of the cases cited by the counsel for the plaintiff in error, the suit has been brought by a party to the original transaction, or on a con- tract so connected with it, as to be inseparable from it. As, where a vendor in a foreign country packs up goods for the purpose of enabling the vendee to smuggle them ; or where a suit is brought on a policy of insurance on an illegal voyage; or on a contract which amounts to *'?n71 *ro3int6nance ; or on one for the sale of a lottery ticket, where J such sale is prohibited: or on a bill which is payable in notes issued contrary to law : in these and in all similar cases, the consider- ation of the very contract on which the suit is brought i? vicious, and the plaintiff has contributed to the illegal transaction. One of the strongest cases in the books is Steers v. Laishley, 6 Term Rep. 61, 254 FEBRUARY TERM, 1826. 307 [Armstrong v. Toler.] where the . broker, who had been concerned in stock-jobbing transac- tions, though it be in fact a new contract, it is equally tainted by it." There is much reason to believe that the jury could not have intended to put a question which had been already answered, and that they might design to ask, whether, having goods on board belonging to himself, would place him in the same situation as if interested with Armstrong. The answer of the court would show, that the questions were understood in this sense, and that answer appears to have been satisfactory to the jury. However this may be, we think the law was correctly stated by the court: and we cannot admit, that a judgment is to be reversed because an answer does not go to the full extent of the question. Had the jury desired further information, they might, and probably would, have signified their desire to the court. The utmost willingness was mani- fested to gratify them, and it may fairly be presumed that they had nothing farther to ask. We think that there is no error in the judgment of the circuit court, and that it ought to be affirmed, with costs and damages, at the rate of six per centum per annum. Contracts : void when founded upon transactions in fraud of law. The use of a license or pass from the enemy, being unlawful, one citizen has no right to sell to another, such a license or pass, to be used on board an American vessel ; and no recovery can be had in a suit instituted on such illegal contract. Patton v. Nicholson, 3 Wheat. 204, t Cond. Eep. 335. A contract founded upon transactions in fraud of a lavr of the United States, can fucnish no 256 FEBRUARY TERM, 1826. 309 [Chirac v. Reinicker.] lawful cause of action ; and the courts of this country will not lend their aid to enforce a con- tract thus tainted. Executors of Cambioso v. Assignees of Maffitt, 2 Wash. C. C. R. 98. Nor is this general principle affected by the circumstance, that the plaintiff is a foreigner ; nor is it important whether he had notice of the facts on which it is to operate. Ibid. In some cases, a foreigner is not bound to take notice of foreign revenue laws ; for if he make a firm and final contract in his own or a foreign country, it is immaterial to him what use may be made of it in the violation of foreign revenue laws. But, in similar cases, if a citizen be knowingly instrumental in a breach of the laws of his own country, the tribunals of that country will not afford him a remedy; as if he sell goods for the purpose of smug- gling. Ibid. But if the contract of a foreigner is to be completed in, or has reference to its execution in this country, and it is repugnant to our laws, he is bound by those laws, and must take notice of them. Ibid. A contract was made for rebuilding fort Washington, by M., a public agent, and a deputy quartermaster-general, with B. ; in the profits of which M, was to participate. False measures of the work were attempted to be imposed on the government, the success of which was pre- vented by the vigilance of the accounting officers of the treasury. A bill was filed to compel an alleged partner in the contract to account for and pay to one of the, partners in the trans- action one-half of the loss sustained in the execution of the contract : held, that to state such a case is to decide it. Public morals, public justice, and the *well-established principles r^ni n of ail judicial tribunals, alike forbid the interposition of courts of justice to lend their L "^" aid to purposes like this. To enforce a contract which began with the corruption of a public officer, and progressed in the practice of known wilful deception in its execution, can never be approved or sanctioned by any court. Bartle v, Coleman, 4 Peters, 184. - The law leaves the parties to such a contract as it found them. If either has sustained a loss by the bad faith of the particeps criminis, it is but a just infliction for premeditated and deeply practised fraud. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers to shift the loss from one to another, or to equalize the benefits or burdens, which may have resulted from the violation of every principle of morals and of law. Ibid. . It has been long settled that a promise made in consideration of an act which is forbidden by law, is void. It will not be questioned that an act forbidden by the constitution of the United States, which is the supreme law, is against law. Craig v. The State of Missouri, i Peters, 410. Chirac and others v. Reinicker. 11 Wheaton's Reports, ^SO. A counsel or attorney is not a competent witness to testify as t.^ facts communicated to either by his client, in the course of the relation subsisting between them, but may be examined as to the mere fact of the existence of that relation. Confidential communications between client and attorney are not to be revealed at any time. Thd privilege is not that of the attorney, but of the client, and it is indispensable for the pur- poses of private justice. [See note at the end of the case.] Whatever facts, therefore, are communicated by a client to a counsel solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose, and their testimony is incompetent. A counsel may however be asked, and in answering the question his testimony is competent, whether he bad been retained by the party as counsel or attorney ; but he cannot be asked in what capacity he was so retained, or what claim or title he was employed to maintain. The action for mesne profits may be maintained against him who was the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit, although he was not a party to that suit, and did not take upon himself the defence thereof upon the record, but another did as landlord. [See note at the end of the case.] A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant Vol. VI.— 33 w 2 257 310 SUPREME COURT. [Chirac v. Beinicker.] in possession, but not in relation to third persons. But where the action is brought against the landlord in faft, the record, in the ^ectment suit, is admissible to show the possession of #^111 ''^^ plaintiff connected with his title, although it is not conclusive * upon the de- "'-'-J fendant in the same manner as if he had been a party on the record. Amendments to the pleadings are matters in the discretion of the court below. Error will not lie to this court, on the allowance or refusal of such amendments. [See note at the end of the case.] Variances between the writ and declaration cannot be taken advantage of in the court below, after plea pleaded. [See note at the end of the case.] QuEere, Whether by the modern practice such variances can be taken advantage of at all i ERROR to the circuit court of Maryland. This was an action of trespass for mesne profits, brought by the SlaintifFs in error, Chirac and others, against the defendant in error, Leinicker, in the court below. The plaintiffs had recovered judgment, and possession of the premises, in an ejectment, in which one C. J. F. Chirac prayed leave of the court, as landlord of the premises, to be made defendant in the place of the casual ejector, and was admitted accordingly under the common consent rule. At the trial of the pre- sent suit, the record of the proceedings in the ejectment were offered by the plaintiffs as evidence to maintain this action ; and they then offered to prove, by the testimony of R. G. Harper, and N. Dorsey, Esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectment for his benefit, and also propounded to these witnesses the following question : Were you retained, at any time, as attorney or counsel, to conduct the ejectment suit above mentioned, on the part of the defendant, for his benefit, as landlord of those pre- mises T This question was objected to by the defendant's counsel, as seeking an improper disclosure of professional confidence ; and was rejected by the court. Whereupon the plaintiffs excepted. The plaintiffs then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the pre- mises in question was vested in John B. Chirac, deceased ; and also read in evidence certain depositions to prove who were the heirs of J. B. Chirac ; and also offered the record in the ejectment to prove Maria Bonfils to be one of the heirs, and then offered to prove, by parol evidence, that the defendant vvas, in fact, landlord of the premises at the commencement, and during the progress of the ejectment, and had notice of the same, and retained counsel to defend the same, and re- ceived the rents and profits thereof during its progress ; whibh last- mentioned evidence the court refused to admit ; and the plaintiffs ex- cepted to the refusal. The plaintiffs then offered to prove the same facts, (not saying by parol evidence,) with the, additional fact that counsel did defend the same action for the benefit of the defendant. This evidence was also *rejected by the court, and constituted the third exception of ^l^J the plaintiffs. The fourth exception taken by the plaintiffs, related to the proper parties to the action. The original plaintiffs in the suit were Anthony Taurin Chirac, Mathew Chapus, and Anna Maria his wife, Mathew Thevenon and Maria his wife, and Maria Bonfils, the same persons having been plaintiffs in the ejectment. Pending the suit, the plaintiffs obtained leave to amend their declaration, and amended it, by intro- 358 *; FEBRUARY TERM, 1826. 312 [Chirac v. Reinicker.] ducing the name of John B. E. Bitarde Desportes, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. No objection was taken to this amendment, and the defendant pleaded the general issue to the declaration so amended. The evidence of title of John B. Chirac, deceased, having been introduced, and also evidence to prove that Anthony T. Chirac, and the female plaintiffs, were heirs- at-law of John B. Chirac, the defendant prayed the court to instruct the jury, that they ought to find a verdict for the defendant, unless they were satisfied that all the plaintifis were the proper heirs-at-law of John B. Chirac; which direction the court accordingly gave. The fifth exception related to the supposed variance between the writ and declaration, by the amendment, introducing the husband of Maria Bonfils as a party upon the record. The court held the variance fatal under the general issue. Mr. D. Hoffman and Mr. Mayer, for the plaintiflTs in error, cited : 7 East. Rep. 357, in note. 4 East. Rep. 759. 4 Esp. N. P. C. 23. 2 Esp. N. P. C. Bull. N. P. 284. 4 T. R. 432, 752. 17 Johns. Rep. 335. 18 Johns. Rep. 230. Norris's Peake, 250, 251, 252. 3 Johns. Cos. 198. 13 Johns. Rep. 492. 1 Burr. 667, 665. Runningt. Eject. 192, 193, 198, 200, 201, 492—497. Adams on Eject. 328, 337, 329, 333, 334. 2 Johns. Cas. 438. 3 Camp. 455, in point, and inaccurately stated in Adams on Eject. 2 Butr. 1290. 7 T. R. 108. 13 Johns. Rep. 447. 1 Harris and Johns. Maryland Rep. Stearnes on Real Actions, 416, 390. Skinn.2'il. Salk. Rep. 260. Bull. N. P. 87. Strange' s Rep. 960. Cov?p. Rep. 243. Dougl, Rep. 584. Stephens on Plead. 69. Chitt. Plead. 439. 2 Wils. Rep. 85, 395. 2 Salk. Rep. 658. 1 Bos. and Pul. 645. 6 T. R. 364. Com. Dig. Abatement, G. 8. Bac. Air. Abatement, H. 1. 1 Bos. and Pul. 383, (a decision founded on the statute, allowing a plaintiff, in certain cases, to enter an appearance for a defendant, and proceed to judgment.) 1 Saund. 318, and in note. Keb. 544. 2 Lord Raym. 908. 1 Strangers Rep. 225. Rep. temp. Hardw. 184, 189. 1 H. Bl. 250. Chitty's Plead. 252. 1 Wils. Rep. 141. 3 Wils. Rep. 61. 2 Bl. Rep. 722. *Mr. Ogden and Mr. Webster, for the defendant, cited: rj^oiQ 1 Selwyn's JV. P- 121. ■■ •**•* Mr. Justice Story delivered the opinion of the court. This is an action of trespass for mesne profits, brought by the plain- tiffs in error against the defendant in error, in the circuit court for the district of Maryland. The cause comes before this court upon excep- tions taken by the plaintiffs on the trial of the cause in the court below. The plaintiffs had recovered judgment, and possession of the pre- mises, in an ejectment, in which J. C. F. Chirac prayed to be admitted as landlord to defend the premises, and was admitted accordingly under the common consent rule. The record of the proceedings in that action were offered by the plaintiffs as evidence in the present suit ; and they then offered to prove, by the testimony of R. G. Harper, and W. Dorsey, esquires, that the defendant had retained, and paid them, to conduct the defence of the ejectment for his benefit, and also pro- pounded to these witnesses the following question : were you retained, at any time, as attorney or counsellor, to conduct the ejectment suit above mentioned, on the part of the defendant, for the benefit of the 259 313 SUPREME COURT. [Chirac v. Beinicker.] said George Reinicker, as landlord of those premises. This question •was objected to as seeking an improper disclosure of professional con- fidence. The court sustained the objection ; anid this constitutes the first ground of exception. The general rule is not disputed, that confidential communications between client and attorney, are not to be revealed at any time. The privilege, indeed, is not that of the attorney, but of the client ; and it is indispensable for the purposes of private justice. Whatever facts, therefore, are communicated by a client to counsel, solely on account of that relation, such counsel are not at liberty, even if they wish, to dis- close ; and the law holds their testimony incompetent. The real dis- pute in this case is, whether the question did involve the disclosure of professional confidence. If the question had stopped at the inquiry whether the witnesses were employed by Reinicker, as counsel, to con- duct the ejectment suit, it would deserve consideration, whether it could be universally afl^rmed, that it involved any breach of profes- sional confidence. The fact is preliminary in its own nature, and establishes only the existence of the relation of client and counsel, and, therefore, might not necessarily involve the disclosure of any commu- nication arising from that re\ation after it was created. But the ques- tion goes farther. It asks, not only whether the witnesses were employed, but whether they were employed by Reinicker to conduct the ejectment for him, as landlord of the premises. We are all of ^o-iA-i opinion, that the *question in this form, does involve a disclosure -■ of confidential communications. It seeks a disclosure of the title and claim set up by Reinicker to his counsel, for the purpose of conducting the defence of the suit. It cannot be pretended that counsel could be asked what were the communications made by Reinicker as to the nature, extent, or grounds of his title ; and yet, in effect, the ques- tion, in the form in which it is put, necessarily involves such a dis- closure. The circuit court was, therefore, right in their decision on this point. The plaintifis then gave in evidence certain deeds and patents, by which, and the admissions of counsel on both sides, the title to the premises in question was vested in John B. Chirac, deceased ; and also gave in evidence, certain depositions to prove who were the heirs of J. B. Chirac, and also offered the record in the ejectment to prove Maria Bonfils to be one. of the heirs; and then offered to prove, by parol evidence, that the defendant was, in fact, landlord of the premises at the commencement and during the progress of the ejectment, and had notice of the same, and employed counsel to defend the same ; and received the rents and profits thereof, during the progress of the ejectment ; which evidence the court refused to admit : and this constitutes the second exception of the plaintiffs. The plaintiffs then oflfered to prove the same facts, (not saying by parol evidence,) with the additional fact, that counsel did defend the same action for the benefit of the defendant. This evidence was also rejected by the court, and constitutes the third exception of the plaintiffs. The question of law, involved in each of these exceptions, is sub- stantially the same. It is, whether a person, who was not a party to the ejectment, and did not take upon himself, upon the record, the defence thereof^ but another did as landlord, may yet be liable in an 260 FEBRUARY TERM, 1826. 314 [Chirac v. Reinicker.] action for the mesne profits, upon its being proved that he was, in fact, the landlord, received the rents and profits, and resisted the recovery. It is undoubtedly true, that in general, a recovery in ejectment, like other judgments, binds only parties and privies. It is conclusive evi- dence in an action for mesne profits against the tenant in possession, when he has been duly served with a notice in ejectment, whether he appears, and takes upon himself the defence, or suffers judgment to go by default against the casual ejector. The reason is, that in the first case, he is the real party on the record ; in the last he is considered as substantially the defendant, and the judgment by default, as a confes- sion of the title set up in the ejectment. Such was the decision of the court in Aislin v. Parkin, in 1 Burr. 667. But in relation to third persons, the judgment in ejectment is not conclusive; and if they are sued in an action for mesne profits, which is substantially an action *against them as trespassers, they may controvert the plaintifPs r^o, ,- title at large. In such a suit, the record of the ejectment is not '- evidence to establish the plaintifPs title ; but it seems admissible for another purpose, that is to say, to show the possession of the plaintiff. The plaintiff may certainly prove his possession connected with his title, by any sufficient evidence in pais ; and if his possessiori has been under a judgment of law, he is entitled to establish it by introducing the record of the recovery, and an executed writ of possession under it. The question then is, generally, whether it is competent for the plain- tiff to maintain an action for mesne profits against any person who is in possession of the land by means of his tenants, and who, by his acts, commands, or co-operation, aids in the expulsion of the plaintiff, and in withholding possession from him. All persons who aid in, or com- mand, or procure a trespass, are themselves deemed in law to be tres- passers, whether they are actually present, or do the act through ~the instrumentality of their agents and servants. A recovery of the pos- session, in an ejectment against one of such agents, does not constitute a bar to an action for mesne profits against another agent, for the same reason, that the former suit is no bar to the latter against the defendant in ejectment, viz., that the mesne profits were not a matter in contro- versy in the ejectment. If, then, it is competent to maintain the action for mesne profits against any trespasser, although not a defendant in ejectment, it is competent to prove that the defendant is in that pre- dicament. The evidence offered, in this case, was strong to prove the fact, that the defendant was a party to the trespass, supposing the plaintiffs to have established their title and possession. If he was land- lord of the premises, and the other parties were in possession under him ; if he was in the perception of the rents and profits, if he resisted the plaintiff's title and possession, and co-operated in the acts of the tenants for this purpose, the evidence was proper for the jury as proof of his being a cotrespasser. This doctrine is supported by the case of Hunter v. Britts, 3 Campb. N. P. Rep. 455, which was cited at the bar. There the judgment was against the casual ejector in the ejectment suit, and the action for the mesne profits was brought against Britts as landlord; and he was proved to be in the receipt of the rents and profits from the time of the demise till the writ of possession was executed. The ejectment was served upon the tenant ; there was no evidence that Britts had any 261 315 SUPREME COURT. [Chirac i;. Eeinicker.] notice of this till af.sr judgment; but, subsequently, he promised to pay the rent, and the costs, to the plaintiff. It was objected, that the judgment in ejectment was not, under these circumstances, evidence of title against Britts ; and lord Ellenborough held, that it was not, with- *3161 ^^^ *notice of the ejectment. But he thought that his subse- ■' quent promise amounted to an admission that the plaintiff was entitled to the possession of the premises, and that he himself was a trespasser. The language of the learned judge seems, indeed, to im- port, that if the landlord had had notice of the ejectment, he would have been concluded by the recovery in the ejectment. It might be so, if the common notice had been formally given to him as tenant in possession, and he had neglected to take upon himself the defence of the suit. If, however, the notice was in pais, and conduced merely to prove his actual knowledge of the suit, without calling upon him to defend it, we are not prepared to admit, that, on general principles, it ought to have such an effect.(a) But the point actually decided was, that a party might be charged, in an action for mesne profits, who was not, in any sense, a party to the ejectment, by establishing the title against him, and showing his connexion as landlord with the tenant in possession, and his adoption of the acts of the latter. But, it is said, that assuming the law to be so in general, yet, in the present case, the plaintiffs are estopped from setting up the fact that the defendant was the real landlord, because, in the ejectment, one J. C. F. Chirac prayed leave of the court, " as landlord of the premises, to be made defendant" in the place of the casual ejector, wnich was, with the consent of the lessee of the plaintiffs, allowed by the court. It does not appear to us, that any such estoppel arises from this alle- gation in the record. The record itself certainly does not constitute a technical estoppel, for it is res inter alios acta. The most that can be said is, that it is proper evidence to prove who the plaintiffs at that time deemed to be landlord, and, therefore, admissible to rebut the presumption that the present defendant was the landlord. But, cer- tainly, the evidence was not conclusive upon either party. It was open to the plaintiffs to show, that, in point of fact, the present defendant was the real landlord, that the admission in the record was founded in mistake of the facts, or that J. C. F. Chirac was a sub- landlord under Reinicker, or his superior landlord. What would have been the effect of such proof is not for this court to determine. We think, then, that the evidence offered by the plaintiffs was admissible upon general principles ; and we see no estoppel which excludes it in this particular case. The directions of the circuit court were, on this point, erroneous. If it had appeared upon the record, that the evidence offered by the plaintiffs was solely to connect the defendant with the ejectment, so that the recovery would be conclusive upon him in the same manner as if he had been a party on the record, and, as such, admitted to de- ^„|--| fend, *and actually defending the suit, the case might have re- ■J quired a very different consideration. We have already inti- mated an opinion, that notice of an ejectment suit, or defence of the suit, by a person not tenant in possession, or defendant on record, does (a) Adams on Ejectment, p. 336, 2(1 ed. 262 FEBRUARY TERM, 1826. 317 [Chirac v. Reinicker.] not make him a party to the suit in contemplation of law, so as to con- clude his rights. In considering the fourth and fifth exceptions, it is necessary to advert to the fact, that the plaintiffs in this action originally were Anthony Taurin Chirac, Mathew Chapus and Anna Maria his wife, Mathew The- venon and Maria his wife, and Maria Bonfils, the same persons having been plaintiffs in the ejectment. During the pendency of the suit the plaintiffs obtained leave to amend their declaration, and did amend it, by introducing the name of John B. E. Bitarde Desportes, as husband of the said Maria, called, at the commencement of this suit, Maria Bonfils. To this amendment no objection was taken, and the defendant pleaded to the declaration, so amended, the general issue. The evidence of title of John B. Chirac, deceased, being introduced, and also, evidence to prove that Anthony T. Chirac and the female plaintiffs were heirs-at- law of John B. Chirac, the defendant then prayed the court to direct the jury, " that they ought to find a Verdict for the defendant, unless they are satisfied that all the plaintifis are the proper heirs-at-law of the aforesaid John B. Chirac," which direction the court accordingly gave. The probable intention of the defendant was to pray an instruc- tion to the jury, that unless all those of the plaintiffs who claimed to be heirs of John B. Chirac, should establish their title, the suit could not be maintained. In this view the opinion of the court would be correct, for it is a general rule that no recovery can be had unless all the plain- tiffs are competent to maintain the suit. If, therefore, the title fails as to one, it is not maintainable in favour of the others. The proof does not, under such circumstances, meet the case set up in the declaration. But, framed as this exception actually is, the direction given by the court is, in its terms, erroneous. It was hot necessary to prove that all the plaintiffs are the proper heirs-at-law of J. B. Chirac. The action was maintainable if the husbands were not the proper heirs of J. B. Chirac ; for, in right of their wives, they were proper parties to the suit. The fourth exception is, therefore, well taken. The fifth exception is founded on the supposed variance between the writ and declaration, by the amendment, introducing the husband of Maria Bonfils upon the record. The court held this variance fatal under the general issue. It is observable, that this amendment was made under an order of the court, and was not objected to, on the record, by the defendant ; and that the general issue was subsequently pleaded. It has been decided, in this court, that the allowance or disallowance of amendments is not matter for which a writ of error lies here. Vari- ances *between the writ and declaration, are in general matters p^oi o proper for pleas in abatement ; and if, in any case, a variance L between thewrit and declaration can be taken advantage of by the defend- ant in the court below, it seems to be an established rule, that it cannot be done except upon oyer of the original writ, granted in some proper stage of the cause. The existence of such variance forms no matter of controversy upon the general issue, by which the jury are to be go- verned in forming their verdict. In the present case, as no objection was taken to the amendment upon the record, it must be deemed to have been waived by the defendant, and, therefore, not proper to be in- sisted upon at the trial, (a) It does not appear on the record, whether (a) See Com. Dig. Abatement, G. 8 ; Com. Dig. Pleader, CIS; 2 Wils. Rep. 85, 894, 263 318 SUPREME COURT. [Chirac v. Keinicker.] Maria Bonfils was married before or pending the suit ; and the fact might have a material bearing upon the propriety of granting the amendment, since, at all events, if pending the suit, it would not of it- self abate the suit ; and the objection could only be made available by a plea in abatement, (a) Upon the whole, it is the opinion of the court, that there is error in the directions of the circuit court in the four last exceptions, and con- tained in the record, and for this cause the judgment must be reversed, and a venire facias de novo awarded. Attorney, An attorney is not permitted to disclose, as a witness, the secrets of his client, becawe, in doing so, he would betray a confidence, which, from necessity, the client must repose is him. Andrews et al. v. Solomon et at,, 1 Peters's C. C. R. S56. All the reasons which apply to the attorney, apply to the interpreter between the client and attorney, of whom he is merely the organ. Ibid. ■ But a person, who came to the knowledge of facts, while a student in the office of the attor- ney consulted by the party in relation to the matter, may be a witness. Ibid. Mesne profits. See notes, 5 Cond.Bep. 399. Amendment. See notes, 2 Cond. Rep. 176. The declaration purported to count upon sixty-eight bills of the Bank of the commonwealth of Kentucky, and it appeared that one of the bills had been omitted to be described, so that the declaration made out a less sum than the writ claimed or the judgnient gave. The defendants in error, plaintiffs below, moved for leave to cure the defect by rendering a remittitur of the amount of the bill so omitted and damages pro tanto. This court thinks itself authorized to make a precedent in furtherance of justice, whereby a more convenient practice may be introduced, and to allow the party to enter his remittitur ; but on payment of the costs of the writ, if error is prosecuted no further after such amend- ment made. Bank of Kentucky V. Ashley et al., 2 Veteis, 329. *Q1Q1 *yariance in pleading. oi-y\ See Notes, 1 Cond. Rep. 311. . This court has repeatedly decided, that the exercise of the discretion of the court below, in refusing or granting amendments of pleadings or motions for new trials, affords no grounds for a writ of error. In overruling a motion for leave to withdraw a replication and file a new one, the court exercised its discretion ; and the reason assigned as influencing that discretion, cannot affect the decision. The United States v. Buford, 3 Peters, 31. < 395; 1 Chitt. PI. 438, 439; Stephens on Plead. 68, 433; 1 Saund. Rep. 318, note 8, by Williams. (a) Com. Dig. Abatement, H. 42. 264 FEBRUARY TERM, 1826. 319 Finley, Appellant, v. The President, Directors, and Company of the Bank of the United States, Respondents. 11 Wheaton'a Reports, 304. Although, in general, all encumbrancers must be made parties to a bill of foreclosure, yet where a decree of foreclosure and sale was made and executed, at the suit of a subsequent mort- gagee, and with the consent of the mortgagor, it not appearing to the court that there was any prior encumbrance, the proceedings will not be set aside upon the appUcation of the mortgagor, in order to let in the prior mortgagee, who ought regularly to have been made a party, unless it be necessary to prevent irremediable mischief. Qusere, Whether such a practice be admissible in any case. [See note at the end of the case.] But in such a case, the prior encumbrancers are not bound by the decree in a suit to which they are not made parties ; and the purchasers under the sale take subject to the prior liens. THIS cause was argued by Mr. Bibb, for the appellant ; and by Mr. Webster, for the respondents. Cases cited : Haines v. Beach, 3 Johns. Ch. Rep. 459, 466 ; Ensworth V. Lambert, 4 Johns. Ch. Rep. 605 ; M'Gown v. Clerks, 6 Johns. Rep. 450. Mr. Chief Justice Marshall delivered the opinion of the court. This is a bill in chancery brought by the Bank of the United States against James Finley, to obtain a decree for the sale of property mort- gaged for the security of a debt due to the l)ank. The mortgage-deed was executed on the 28th of September, 1822, *and contains a recital of debts due to the bank to the amount r#.onn of six thousand two hundred and forty dollars, on account of '■ which a note was executed on that day to the bank for that sum, pay- able sixty days after date. At the November term of the circuit court of the United States for the district of Kentucky, the bill was filed, stating the consent of the mortgagor to an immediate sale of the mort- gaged property, although the day of payment was not arrived ; and, on the same day, an answer was filed consenting to a decree for the sale. A decree was immediately entered, by consent of parties, directing the marshal to sell the property. The court then proceeds to direct the marshal, after deducting the expenses of sale, his commission, and the costs, to pay to the bank the sum of six thousand two hundred and forty dollars, with interest from the date of the note. The sale was made in pursuance of the decree, and the report thereof was returned to the court by the marshal. At the succeeding term, William Coleman filed his petition, stating, among other things, that he held a prior mortgage on the same lands, and praying that he might be made a party defendant to the suit. His petition was rejected, and he prayed an appeal to this court, which has been dismissed as irregularly granted. After dismissing this petition, the circuit court pronounced a decree affirming the sale made by the marshal, and directing the credit to which Finley should be entitled for the money paid out of its proceeds to the bank. This decree also Vol. VI.— 34 X 265 320 SUPREME COURT. [Finley v. The Bank of the United States.] cpnsiders the debt due to the bank as amounting to six thousand two hundred and forty dollars, with interest from the date of the note. The mortgage to Coleman is filed, and appears to be dated three days anterior to that made to the bank. A suit to obtain a sale of the premises was instituted in the state court in March, 1823, and was de- pending when the final decree was pronounced at the suit of the bank. After the final decree had been pronounced, Finley filed a petition, praying that the sale and decree might be set aside, alleging, among other reasons therefor, that Coleman, the prior mortgagee, had not been made a party, althqugh the existence of his mortgage was known to the baink. The prayer of the petition was rejected, and Finley has appealed to this court. The counsel for the plaintiff in error insists, that this decree ought to be reversed, because it was pronounced in a case in which proper parties were not before the court. It cannot be doubted that Coleman ought regularly to have been a party defendant, and that had the existence of his mortgage been known to the court, no decree ought to have been pronounced in the case until he was introduced into it. But this fact was kept out of *32n *^l^^ ""*i' ^^^ decree was pronounced, the sale made, the J money paid to the creditor, and the report of his proceedings returned by the marshal. If the manner in which the sale was made, and the money directed to be paid, be unusual and exceptionable, it was done by consent, and the error is not imputable to the court. The only question presented to the judges by this petition, was, whether a decree, completely executed by a sale of the property, and payment of the purchase-money, should be set aside, and the suit reinstated for the purpose of introducing a party who ought regularly to have been an original defendant, but who was not shown, by any proceedings in the cause, to be concerned in interest until the decree was made and executed. There would certainly be great inconvenience in such a practice ; and, if it be admissible in any case, on which the court gives no opinion^ it must be where the mischief resulting from a rejection of the petition would be irremediable. This is not shown to be a case of that description. Coleman's mortgage cannot be aflfected by this de- cree. His rights cannot be extinguished by it. His suit in the state court will proceed as if this decree had never been pronounced. The purchasers under the decree of the circuit court take the land subject to prior encumbrances, and have, probably, taken this encumbrance into consideration in the price given for the land. But, be this as it may, they do not complain, or object to their purchase, in consequence of the cloud hanging over the title. Coleman's rights cannot be affected; and if Finley has suffered by selling his land subject to a lien, it is an injury which he has knowingly brought upon himself. This is not, then, a case for such an extraordinary measure as opening a decree made by consent, after it has been carried into execution, on the peti- tion of the party who has given that consent. We do not think the decree is erroneous because the prior mortgagee was not made a de- fendant, that fact not having appeared to the court until the decree was completely executed. But, in the disposition of the money produced by the sale, a small mistake appears to have been madfe. There were some previous debts 266 FEBRUARY TERM, 1826. 321 [Wetzell V. Bussard.] due from Finley to the bank, amounting to six thousand two hundred and forty dollars, which appear to have been absorbed in the note given for that sum on the 28th of September, 1822, payable sixty days after date, to secure the payment of which the mortgage-deed was executed. If this note carried interest from its date, that fact does not appear, and cannot be presumed. The mortgage-deed does not purport to secure the payment of such interest. Yet the decree of the circuit court subjects the mortgaged property to its payment. This error ought to be *corrected, and may yet be corrected in the circuit court, r^ooo It does not affect the sale. In all other respects, the decree is to L be affirmed. Who are necessary parties in suits in equity. See notes, 5 Cond. Bep. 181. Wetzell V. Bussard. 11 Wheaton's Reports, 309. An acknowledgment of a debt nhich will take a case out of the statute of limitations, must be unqualified and unconditional. [See note at the end of the case.] If it be connected with circumstances, which, in any manner, aifect the claim, or if it be condi- tional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration ; or, if it be construed to revive the original debt, that revival is conditional, and the perform- ance of the condition, or a readiness to perform it, must be shown. Thus, where an action was brought, on a promise in writing to deliver a quantity of powder, and the original assumpsit being satisfactorily proved, the defendant relied upon the statute of limitations ; and one witness deposed, that the defendant told him that the plaintiff need not have sued him; for if he had come forward and settled certain claims which defendant had against him, the defendant would have given him his powder : to another witness, de- fendant said, that he should be ready to deliver the powder whenever the plaintiff settled the suit, which Dr. £. had brought against him, &c. Held, that those declarations did not amount to an unqualified and unconditional acknowledgment of the debt, but that theplain- tiflT ought to have proved a performance, or a readiness to perform, the condition on which the new promise was made. THIS cause was argued by Mr. Swann, for the plaintiff; and by Mr. Jones and Mr. Key, for the defendant. Cases cited for the plaintiff: Swann v. Sowell, 2 Barnw. and Aid. Rep. 759. Leaper v. Tatton, 16 East's Rep. 420. Salk. 29. Slubry V. Champlin, 4 Johns. Rep. 461. The counsel for the defendant cited: Clementson v. Williams, 8 Crunch, 72, 3 Cond. Rep. 37. Bush v. Barnard, 8 Johns. Rep. 407. Mr, Chief Justice Marshall delivered the opinion of the court. This was an action of assumpsit brought by the plaintiff in the cir- cuit court of the United States for the district of Columbia, and county of Washington, on a promise in writing to deliver a quantity of powder. *The defendant pleaded the general issue, and the statute of r^oos limitations. The original assumpsit having been satisfactorily L 267 333 SUPREME COURT. [Wetzell V. Bussard.] proved, the plaintiff, to support the second issue, introduced a witness, who swore that the defendant, in a conversation with him soon after the commencement of the suit, said that the plaintiff need not have sued him, for if he had come forward and settled certain claims which the defendant had against him, the defendant would have given him his powder. To another witness who spoke to him before the commence- ment of the suit, at the instance of the plaintiff, he said that he should be ready to deliver the powder whenever the plaintiff settled a suit which doctor Ewell had brought against him in the district court at Alexandria. Other witnesses proved declarations of the same import. The defendant demurred to this testimony, and the plaintiff joined in demurrer. The court gave judgment in favour of the defendant ; and the plaintiff has brought his cause, by a writ of error, into this court. It is contended, on the part of the plaintiff, that he has proved an acknowledgment of the debt, and that such acknowledgment, according to a long series of decisions, revives the original promise, or lays a foundation on which the law raises a new promise. The English, as well as American books, are filled with decisions which support this general proposition. An unqualified admission that the debt is due at the time, has always been held to remove the bar created by the statute. But where the terms of the acknowledgment are in any degree equivocal, or where some qualification has been annexed to the admission, the question whether the declarations of the party amount to an acknowledgment of an existing debt on which the law will raise an assumpsit, has been differently determined. Leaper v. Tatton, 16 East's Rep. 420, was a suit against the acceptor of a bill of exchange, who pleaded the statute of limitations. At the trial, the plaintiff offered a witness who swore that the defendant, when applied to for payment, said that he had been liable, but was not liable then, because the bill was out of date. He acknowledged his acceptance, but said he would not pay it, that it was not in his power to pay it. A verdict was taken for the plaintiff; and, on a motion for a new trial, lord EUenborough said, " as to the sufficiency of the evi- dence of the promise, it was an acknowledgment by the defendant that he had not paid the bill, and that he could not pay it ; and as the limit- ation of the statute is only a presumptive payment, if his own acknow- ledgment that he has not paid be shown, it does away the statute." Bayley, J., said, the acknowledgment was evidence of a debt ; acknow- ledging his acceptance, and that he had not paid it, creates a debt. The rule was discharged. *'?94l *Although, in this case, the defendant did not expressly admit -1 the existence of the debt, the implication is irresistible. The reason he assigns for not being liable is, that the bill is out of date, and his reason for not paying it is his inability. The court so understood the testimony ; and lord EUenborough speaks of his acknowledgment as amounting to an admission that he had not paid the bill, and could not pay it. In the case of Swan v. Sowell, 3 Barnw. and Aid. 759, Bayley, J., says, that if a party admits the debt, and does not say that it is satis- fied, or refuses to pay it, alleging at the time an insufficient excuse for not paying it, the law will, in these cases, raise an implied promise to pay the debt then acknowledged to be due. 268 FEBRUARY TERM, 1826. 324 [Wetzell V. Bussard.] The language of Mr. Justice Bayley is not entirely free from doubt. If, by " insufficient excuse," he means an excuse which in itself implies an admission that the debt remains due except for the bar created by the act of limitations, the proposition is undoubtedly supported by the general course of the cases. But if his declaration extends to an ex- cuse, which, if true, furnishes a real objection to the payment of the claim, in whole or in part, we think it is laid down too broadly. Both the English and American cases are very well summed up in a note in 4 Johns. Rep. 469, note b. The current of the English deci- sions seems to be in favour of the principle, that any expressions which amount to an admission that the debt was originally due, and has not been paid, will remove the bar created by the act and revive the original assumpsit. The decisions, however, as to this point, have not been entirely uniform. In Coltman v. Marsh, 3 Taunt. Rep. 380, on a motion to set aside a nonsuit in a case in which the statute of limitations had been pleaded, it appeared that the defendant had said to the plaintiff, " I owe you not a farthing, for it is more than six years since." It was contended, that these words ought to have been left to the jury ; but , the court refused th^ motion. So in the case of Leaper v. Tatton, 16 East's Rep. 423, the defendant said, " that he had been liable, but was not liable then, because the bill was out of date." Lord Ellen- borough held, at nisi prius, that this might be considered as no more " than pleading the statute of limitations in his own person;" and the verdict was taken on other words spoken at the same time. Yet these words imply very strongly that the debt was originally due, and remains unpaid. Some of the American cases proceed on the idea of a new promise, for which the ancient debt is a sufficient consideration; and this is a distinction of great importance, where the acknowledgment is connected with any thing required by the defendant. In the case of Clementson v. Williams, 8 Crunch's Rep. 72, *3 Cond. Rep. 37, this court expressed the opinion, that the r.*qoc doctrine of reviving debts barred by the act of limitations, had '- been carried full as far as it ought to be carried, and that the statutes on that subject ought to be construed like other statutes, so as to effect the intention of the legislature. In that case, a declaration by one partner that the account was originally due, and that he had never paid it, and did not know that it had ever been paid, but supposed his partner had discharged it, was declared to be insufficient to take the case out of the statute. It is true, that the partnership was dissolved when this declaration was made, but the court did not put the case on that point. It was determined on the insufficiency of the acknowledg- ment. We think, upon the principles expressed by the court in the case in 8 Cranch's Rep. and in 3 Cond. Rep. that an acknowledgment which will revive the original cause of action, must be unqualified and unconditional. It n;ust show positively that the debt is due in whole or in part. If it be connected with circumstances which in any man- ner affect the claim, or if it be conditional, it may amount to a new assumpsit for which the old debt is a sufficient consideration ; or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or a readiness to perform it, must be shown. x2 269 325 SUPREME COURT. [Wetzell V. Biissard.] In the case at bar, the defendant said to one witness, that if the plaintiff had come forward and settled certain claims the defendant had against him, he would have given him his powder ; and to another he said, " he should be ready to deliver the powder whenever the plaintiff settled a suit which doctor Ewell had brought against defendant in the court of Alexandria, on account of a patent-right and machine sold to him by the plaintiff." These declarations do not amount to an unqualified and uncondi- tional acknowledgment that the original debt was justly demandable. They assert a counter claim on the part of the defendant, which he was determined to oppose to that of the plaintiff. He did not mean to give validity to the plaintifPs claim, but on condition that his own should be satisfied. These declarations, therefore, cannot be cooetrued into a revival of the original cause of action, unless that be done on which the revival was made to depend. It may be considered as a new promise, for which the old debt is a sufficient consideration, and the plaintiff ought to prove a performance, or a readiness to perform, the condition on which the promise was made. A distinction seems to have been taken in England, between a pro- mise to pay a sum of money, and a contract for the performance of a particular act. In Boydell v. Drummond, 2 Campb. JV. P. Rep. 157, lord Ellenborbugh said, " if a man acknowledges the existence of a *32fiT **^®^* barred by the statute, the law has been supposed to raise -' a new promise to pay it, and thus the remedy is revived ; but no such effect can be given to an acknowledgment where the cause of action arises from the doing, or omitting to do, some act, at a particular moment, in breach of a contract." But, without placing the cause on this distinction, the court is of opinion, that the original cause of action is not revived, and that there is no error in judgments Judgment affirmed with costs. Limitation of actions. How far the acknowledgment of a debt will prevent the operation of the statute of limita- tions, and what will amount to a new promise : When a party, by a recital in a deed, admits the existence of a debt, it is sufficient evidence to take the case out of the statute of limitations. King v. Riddk, 7 Cranch, 168, 2 Cond. Rep. 459. An acknowledgment of the original justice of a claim, is not sufficient to take the case out of the statute of limitations; the acknowledgment must go to the fact that it is still due. Clementaon v. Williams, 8 Cranch, 72, 3 Cond. Rep. 37. The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away. Ibid. So far as decisions have gone on this point, principles may be considered as settled, and they will not lightly be unsettled ; but they have gone full as far as they ought to be carried. IKd. The statutes of limitations were not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. Ibid. An acknowledgment by one partner, after the dissolution of the partnership, of the original justice of the claim, and that he had not paid it, and did not know that it ever had been paid, is not sufficient to take the case out of the statute. Ibid. The including a demand in the schedule of an insolvent's debts, is sufficient evidence to sustain an issue on a replication of a new promise to a plea of the statute of limitations, if the period of limitation has not expired after the date of the schedule. Bouiie v. Henderson et al., 6 Wheat. 514, 5 Cond. Rep. 157. An acknowledgment of the debt by the personal representatives of the deceased original 27a FEBRUARY TERM, 1826. 326 [Wetzell V. Bueeard.] debtor, will not take the case out of the statute of limitations. Thompson v. Peter et al., 12 Wheat. 565, 6 ConJ. Rep. Any offer on the part of the debtor, if, upon a fair interpretation, it amounts either to a promise to pay, or to an acltnowledgment of the debt or of some debt, is sutHcient to remove the bar of the statute ; as if he says he will pay if the creditor will prove his demand, or a promise to account, though he should add he owes nothing. Read v. Wilkinson, 2 Wash. C. C. R. 514. But any thing which is added, going to negative a promise, must be considered as qualifying every other expression, and amounts to a refusal to pay, which cannot be construed into a promise to pay ; as if he says he owes the debt, but will not pay it, and will avail himself of the statute of limitations. Ibid. If the promise is conditional, the remedy is not revived, unless the condition is performed ; the creditor must take the promise on the terms offered, or not at all. Ibid, The statute of limitations, instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from courts of justice, *as r4tQO<7 would have made it, what it was intended, emphatically, to be, a statute of repose. It L "* ' is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time ; but to afford security against stale demands, after the true state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. Bell v. Morrison, 1 Peters, 360. An exposition of the statute of limitations, which is consistent with its true object and import, is that expressed by this court, in the case of Wetzell v, Bussard, 1 1 Wheat. 309, " an acknow- ledgment which will revive the original cause of action, must be unqualified and unconditional — ^it must show, positively, that the debt is due, in whole or in part. If it be connected with the circumstances which in any manner affect the claim, or if it be conditional, it may amount ^o a new assumpsit, for which the old debt is a sufficient consideration ; or if it be construed to revive the original debt, that revival is conditional, and the performance of the condition, or » readiness to perform it, must be shown." Ibid. If the bar of the statute is sought to be removed by the proof of a new promise, that promise, as a new cause of action, ought to be proved in a clear and explicit manner, and be, in its terms, unequivocal and determinate ; and if any conditions are annexed, they ought to be shown to have been performed. Ibid. The admission of a party of the existence of an unliquidated account, on which something is due to the plaintiff, but no specific balance is admitted, and no document produced at the time, from which it can be ascertained what the parties understood the balance to be, would not, by the courts of Kentucky, be held sufficient to take the case out of the statute, and let in the plaintiff to prove, aliunde, any balance, however large it may be. It is indispensable for the party to prove, by independent evidence, the extent of the balance due to him, before there can arise any promise to pay it as a subsisting debt. Ibid. The acknowledgment of a debt by one partner, after a dissolution of the copartnership, is not sufficient to take the case out of the statute, as to the other partners. Ibid. A dissolution of partnership puts an end to the authority of one partner to bind the other ; it operates as a revocation of all power to create new contracts, and the right of partners as such, can extend no further than to settle the partnership concerns already existing, and distribute the remaining funds ; and this right may be restrained by the delegation of this authority to one partner. Ibid. After a dissolution of a partnership, no partner can create a cause of action against the other partners, except by a new authority communicated to him for that purpose. Vnd. When the statute of limitations has once run against a debt, the cause of action against the partnership is gone. Ibid. 271 328 SUPREME COURT. *328] Fowle v. The Common Council of Alexandria. 11 Wheatoti's Reports, 320. No judgment can be rendered upon a demurrer to evidence until there is a joinder in demur- rer ; and issue cannot be joined upon the demurrer so long as there is any matter of fact in controversy betvireen the parties. [See note at the end of the case.] The demurrer to evidence must state facts, and not merely the evidence conducing to prove them. One party cannot insist upon the other party joining in demurrer, without distinctly admitting, upon the record, every fact and every conclusion, which the evidence given for his adversary conduced to prove. Where the demurrer to evidence is defective In these respects, and judgment has, notwithstand- ing, been rendered upon it for the party demurring, by the court below, the judgment will be reversed in this court, and a new trial awarded. THIS cause was argued by Mr. Webster and Mr. Swann, for the plaintiff; and by Mr. Jones and Mr. Taylor, for the defendant. Mr. Justice Story delivered the opinion of the court. This is a writ of error from the circuit court sitting at Alexandria for ■ the district of Columbia. The original action was brought against the defendants to recover damages asserted to have been sustained by the plaintiff, in consequence of the neglect of the defendants to take due bonds and security from one Philip G. Marsteller, licensed by them as an auctioneer for the years 1815, 1816, 1817, and 1818, according to the express provisions of the statute in this behalf enacted. At" the trial below upon the general issue, one of the principal points in controversy was, whether the said Marsteller was, in fact, licensed , by the defendants as an auctioneer during the years above stated ; and both parties introduced a good deal of evidence, for the purpose of sup- porting or repelling the presumption of the fact. The defendants de- murred to the evidence as insufficient to maintain the plaintiff's action, and the record itself contains the whole evidence introduced at the trial, as well that arising from the testimony of witnesses as that arising from written documents. There is no joinder in demurrer on the record, which is probably a mere defect in the transcript, as the court proceeded to give judgment upon the demurrer in favour of the defendants. Without a joinder in demurrer, no such judgment could be properly entered ; and such joinder ought not to have been required or permitted while there was any mat- ter of fact in controversy between the parties. *^9Q1 *Indeed, the nature of the proceedings upon a demurrer to J evidence seems to have been totally misunderstood in the pre- sent case. It is no part of the object of such proceedings to bring before the court an investigation of the facts in dispute, or to weigh the force of testimony or the presumptions arising from the evidence. That is the proper province of the jury. The true and proper object of such a demurrer is to refer to the court the law arising from facts. It supposes, therefore, the facts to be already admitted and ascertained, 272 FEBRUARY TERM, 1826. 329 [Fowle V. The Common Council of Alexandria.] and that nothing remains but for the court to apply the law to those facts. This doctrine is clearly established by the authorities, and is expounded in a very able manner by lord chief justice Eyre, in deliver- ing the opinion of all the judges in the case of Gibson v. Hunter, before the house of lords. 2 H. Bl. Rep. 187. It was there held that no party could insist upon the other party's joining in demurrer without dis- tinctly admitting, upon the record, every fact and every conclusion which the evidence given for his adversary conduced to prove. If, therefore, there is parol evidence in the case which is loose and inde- terminate, and may be applied with more or less effect to the jury, or evidence of circumstances wliich is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of other facts, the party demurring must admit the facts of which the evidence is so loose, indeterminate, and circumstantial, before the court can compel the other side to join therein. And if there should be such a joinder without such admission, leaving the facts unsettled and inde- terminate, it is a sufficient reason for refusing judgment upon the de- murrer ; and the judgment, if any is rendered, is liable to be reversed for error. Indeed, the case made for a demurrer to evidence is, in many respects, like a special verdict. It is to state facts, and not merely testimony which may conduce to prove them. It is to admit whatever the jury may reasonably infer from the evidence, and not merely the circumstances which form a ground of presumption. The principal difference between them is, that upon a demurrer to evidence a court may infer, in favour of the party joining in demurrer, every fact of which the evidence might justify an inference; whereas, upon a special verdict, nothing is intended beyond the facts found. Upon examination of the case at bar, it will be at once perceived that the demurrer to evidence, tried by the principles already stated, is fatally defective. The defendants have demurred, not to facts, but to evidence of facts ; not to positive admissions, but to mere circumstances of presumption introduced on the other side. The plaintiff" endeavour- ed to prove, by circumstantial evidence, that the defendants granted a license to Marsteller as an auctioneer. The defendants not only did *not admit the existence of such a license, but they introduced r^oon testimony to disprove the fact. Even if the demurrer could be L considered as being exclusively taken to the plaintiff"'s evidence, it ought not to have been allowed without a distinct admission of the facts which that evidence conduced to prove. But when the demurrer was so framed as to let in the defendants' evidence, and thus to rebut what the other side aimed to establish, and to overthrow the presumptions arising therefrom by counter presumptions, it was the duty of the cir- cuit court to overrule the demurrer as incorrect and untenable in prin- ciple. The question referred by it to the court was not a question of law, but of fact. This being, then, the posture of the case, the next consideration is, what is the proper duty of this court, sitting in error. It is, undoubt- edly, to reverse the judgment, and award a venire facias de novo. We may say, as was said by the judges in Gibson v. Hunter, that this de- murrer has been so incautiously framed, that there is no manner of cer- tainty in the state of facts upon which any judgment can be founded. Under such a predicament, the settled practice is to award a new trial, Vol. VI.— 35 273 330 SUPREME COURT. [Piles V, Bouldin.] upon the ground that the issue between the parties, in effect, has not been tried. Judgment reversed, and a venire facias de novo awarded, (a) Demurrer. See notes, 2 Cond. Sep. 136. Piles and others, Plaintiffs in error, v. Bouldin and others, Defendants in error. 11 Wiefilm's Ueports, 325. UNDER the statute of limitations of Tennessee of 1797, c. 43, s. 4, peaceable and uninterrupted possession, claiming to hold the land ad- verse to the claims of all other persons, for seven years, under a grant, or deed of conveyance founded upon a grant, gives a complete title to the person who has the possession. *^9n *ii'"Jto&n of actions for real property. ""^J See notes of decisions, 4 Cond. Rep. 609. The following cases rtiay be added to those referred to in the previons notes : If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and we must be convinced beyond a doubt that the law is so settled, before we would give our sanction to such a doctrine ; and this is not the case upon authorities. Vfillison v. WatMns, 3 Peters, 51. In no instance has the principle of law which protects the relations between landlord and tenant, been carried so far as in this case, which presents a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession afterwards for such a length of time, that the act of limitations has riin out four times before he has done any act to assert his right to the land. Ibid. . The plaintiff sued the defendant, as register of the United Stales land office in Ohio, for damages, for having refused to note on his books applications made by him for the purchase of land within his district. The declaration charged the register with this refusal, the lands had never been applied for nor sold, and were at the time of the application liable to be so ap- plied for and sold. The statute of limitations is a good plea to the suit. M'Cluny v. iSi7/i- man, 3 Peters, 276. It is a well-settled principle that a statute of limitations is the law of the forum, and operates upon all who submit themselves to its jurisdiction. Ibi/i. Under the thirty-fourth section of the judiciary act of 1789, the acts of limitations of the several states, where no special provisioii has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. Ibid. Construction of the statute of limitations of the state of Ohio. Ibid. Where the statute of limitations is not restricted to particular causes of action, but provides that the action, by its technical denomination, shall be barred if not brought within a limited time, every cause for which such action may be prosecuted is within the statute. Ibid. In giving a construction to the statute of limitations of Ohio, the action being barred by its denomination, the court cannot look into the cause of action. They may do this in those cases where actions are barred for causes specified in the statute ; for the statute only operates against such actions, when prosecuted on the grounds stated. Ibid. Of late years the courts in England and in this country have considered statutes of limito- (a) Vide United States Bank t. Smith, ante, p. 257. 274 FEBRUARY TERM, 1826. 331 [Piles V. Bouldin.] tions more favourably than formerly. They rest upon sound policy, and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction, to evade the effect of those statutes. By requiring those who complain of injuries to seek redress by action at law within a reasonable time, a salutary vigi- lance is imposed, and an end is put to litigation. Ibid. The statutes of limitations of Vermont interpose no bar to the institution by the Society for the Propagation of the Gospel, &c., of an action for the recovery of land granted by the charter of the town of Paulet. The Society for the Propagation of the Gospel v. The town of Paulet, 4c., 4 Peters, 480. The act of the legislature of Vermont, which prohibits the recovery of mesne profits in certain cases, applies to the claims to such profits by the plaintiffs in this suit ; and the pro- visions of the treaty of peace of 1783, and those of the treaty with Great Britain in 1794, do not interfere with the provisions of that act. The law has prescribed the restrictions under which mesne profits shall be recovered : and these restrictions are obligatory on the citizens of the state. 7'be plaintiffs take the benefit of the statute remedy to recover their right to the land ; and they must take the remedy with all the statute restrictions. Ibid. It would be quite a new principle in the law of ejectment and limitations, that the intention to assert the right was equivalent to its being actually done. It is settled law, *that rs,«jrinciple has been well established and generally sanctioned in courts of equity. Ibid, At law the statute operates where the conflicting titles are adverse in their origin ; and no reason is perceived against giving the statute the same effect in equity. Ibid. The construction of the act of limitations, that if adverse possession be taken in the „„ ,, ♦lifetime of the ancestor, and be continued for twenty years, and for ten years after ""*J the death of the ancestor, no entry having been made by the ancestor or those claiming under him, the entry is barred ; is established by the decisions of this court, as well as of the courts of Kentucky. Sicard v. Davis, 6 Peters, 124. A count in the declaration in an ejectment, on a demise from a different party, asserting a different title, is not distinguishable, so far as respects t^e act of limitations, from a new action. Ibid. It is a well settled principle, that the statute of limitations does not run against a state. If 276 FEBRUARY TERM, 1826. 334 [Governeur'a Heirs v. Robertson.] a contrary rule were recognised, it would only be necessary for intruders on the public lands to maintain their possessions until the statute of limitations shall run, and they then would become invested with the title against the government, and e(ll persons claiming under it. Lindsey et al. V. Miller, 6 Peters, 666. The construction of the two statutes of limitations of Tennessee, was never considered as finally settled until 1828, when the case of Gray and Reeder v. Darby's Lessee was decided. In that case it has been adjudged that it is not necessary to entitle an individual to the benefit of the statutes, that he should show a connected title, either legal oi equitable. That if he prove an adverse possession, under a deed, of seven years before suit is brought, and show that the land has been granted, he brings himself within the statutes. Since this decision, the law has been considered settled in Tennessee, and there has been so general an acquiescence in all the courts of the state that the point is not now raised or discussed. As it appears to this court, that the construction of the statutes of limitations of Tennessee is now well settled, different from what was supposed to be the rule at the time this court decided the case of Patton's Lessee v. Boston, and the case of Powell's Lessee v. Green ; and as the instructions of the circuit court of Tennessee were governed by these decisions, and not by the settled law of the state, the judgment must be reversed, and the cause remanded for further proceedings. Green v. The Lessee of Neal, 6 Peters, 291. Doe, ex dem. Governeur's Heirs, v. Robertson and others. 11 Wheaton's Reports, 332. An alien may take real property, by grant, whether from the state or a private citizen, and may hold the same until his title is devested by an inquest of office, or some equivalent proceeding. [See note at the end of the case.] The act of assembly of Virginia of 1779, u. 13, s. 3, secured from escheat all the interest acquired by aliens in real property, previous to the issuing of the patent, and left the rights acquired by them under the patent, to be determined by the general principles of the common law. The title of an alien thus acquired by patent in 1784, under the laws of Virginia, and subse- quently confirmed to him by a legislative act of Kentucky in 1796, and to his heirs, and their grantees, by an act of the same state in 1799, will overreach a grant 'made rj.QQc by Virginia to a citizen in 1785, and defeat the claim of all persons holding under L ""«' such grant. These legislative acts were valid, under the compact of 1789, between the states of Virginia and Kentucky. THIS was an action of ejectment brought in the circuit court of Kentucky, in which the lessors of the plaintiff gave in evidence a patent from the commonwealth of Virginia, for the lands in controversy, lying in Kentucky, to Robertus S. Brantz, then an alien, bearing date the 11th of October, 1784, founded on a land-office treasury warrant. They also gave in evidence a certificate of naturalization of the said Brantz, in the state of Maryland, on the 8th of November, 1784, and an act of the legislature of Kentucky, passed in 1796, entitled, " an act for the relief of Robertus Samuel Brantz," which recited that he was an alien when the patent issued ; confirmed his estate as fully as if he had been a citizen at the time of the grant, with a proviso, that nothing in the act should affect the right or title of any other person or persons, but only " the right which this commonwealth may have in the said lands." The said Robertus S. Brantz died in 1797, leaving a son, Johannes Y 277 335 SUPREME COURT. [Governenr's Heirs v. Robertson.] Brantz, an alien, incapable of inheriting the lands. An act of the legis- lature of Kentucky, passed December 9th, 1799, reciting that Robertus S. Brantz had departed this life indebted to Isaac and Nicholas Gover- neur; that Johannes Brantz, his son and executor, and an alien, made a power of attorney to the said N. G. to sell the lands of the said R. S. B., for the payment of the debt, which sale had been made ; therefore, " all the right which the said R. S. B. had, before, and at his death," and the right of the said Johannes B., was declared to be vested in the, said I. and N. Governeur, " as fully as if the said Robertus S. B. had done in his lifetime, or as if the said Johannes B. had been a natural- ized citizen when he executed the power of attorney for the sale and conveyance of the said lands." The defendants claimed title under a grant of the commonwealth of Virginia, dated the 2d of December, 1785, to one Duncan Rose, and proved a regular derivation of title from him. The plaintiffs thereupon moved the court to instruct the jury, that if they found that the grants to R. S. Brantz covered the lands in contro- versy, that the lessors of the plaintiff duly derive title under N. and I. Governeur, and that R. S. Brantz neither conveyed nor devised those lands, and left no heirs capable of inheriting them, and that the defend- ants were in possession at the commencement of this suit ; that the verdict should be for the plaintiff. The defendants moved the following instructions : 1. That if the jury find, from the evidence, that Robertus S. Brantz *^^fil *w^® ^^ alien at the time when the patent given in evidence -■ was procured by him, that nothing passed to him by said grant, but that it was void. 2. That if Robertus S. Brantz died, leaving his son an alien, and having no relations who were citizens of the United States, or of any of the states^ then upon his death without heirs, the title, if it had passed out of the commonwealth by the patent, was immediately vested in the commonwealth ; and if the grant to Duncan Rose, from the com- monwealth of Virginia, includes the land in controversy, then the act of Kentucky, granting the land to N. and I. Governeur, cannot, under the articles of the compact between Virginia and Kentucky, overreach the grant to Duncan Rose from the commonwealth of Virginia ; and they ought to find for the defendants. 3. That the plaintiff, showing no title or connection with Robertus S. Brantz, but through and by virtue of the act of Kentucky, given in evidence by plaintiff, such grant from Kentucky is, by virtue of the third and fifth articles of the compact with Virginia, of inferior dignity, and inoperative to overreach the grant by the state of Virginia to Dun- can Rose. 4. That the acts of Kentucky of 1796 and 1799, given in evidence by the plaintiff, being in pari materia, are to be taken together; that the latter act is explained by the former, and by operation of said two acts, and of the said compact between Virginia and Kentucky, the title of the plaintiff, as offered in evidence by him, is younger in date, and inferior in dignity, and cannot overreach the grant to Duncan Rose, so far as those grants conflict. 5. That if they find that the grant to Duncan Rose, given in evidence, includes the land held thereunder by the defendants, then the grant of 278 FEBRUARY TERM, 1826. 336 [Governeur's Heirs v. Robertson.] the commonwealth of Kentucky, in the act given in evidence by the plaintiff, is the junior and inferior claim of title, and the jury ought to find for the defendants. The judges of the circuit court being divided in opinion upon the in- structions moved, the division was certified to this court. The counsel for the plaintiff made the following points : 1. That Robertus S. Brantz, both at common law, and by the special provisions of the act of Virginia of 1779, c. 13, s. 3, upon his naturali- zation, took and held an indefeasible title to the lands in question, under his grant. ' 2. That, consequently, the junior grant to Duncan Rose was void, and conferred no title; and, of course, could not have estopped Virginia if no separation had taken place ; and, therefore, could not estop Ken- tucky, by the articles of compact between the two states, from vesting *the title to those lands, by the legislative act of 1799, in 1. and rioorr N. Governeur. L "^^^ The defendants' counsel insisted, 1. That R. S. Brantz being an alien when the grant of Virginia issued to him, the title did not pass out of the commonwealth ; there- fore, the grant to Duncan Rose must be considered as the prior legal title. 2. That under the compact of 1789 between Virginia and Kentucky, the legislative acts of Kentucky of 1796 and 1799, under which the plaintiff claims, cannot overreach the prior grant from Virginia to Rose. For the plaintiff, Mr. Sampson cited : Fairfax v. Hunter, 7 Cranch's Rep. 603, 2 Cond. Rep. 622. Ctaig v. Radford, 3 Wheat. Rep. 594, 4 Cond. Rep. 343. Craig v. Leslie, 3 Wlieat. Rep. 563, 4 Cond. Rep. 331. Orr v. Hodgson, 4 Wheat. Rep. 453, 4 Cond. Rep. 506. Co. Litt. 18 b. I Rac. Abr. Men, C. 133. Page's case, 5 Co. Rep. 52. 3 Rl. Comm. 250. 1 Johns. Cas. 399. Polk's Lessee v. Wendell, 5 Wheat. Rep. 303, 4 Cond. Rep. 650. Alton Wood's case, 1 Co. Rep. 50. Dyer, 11. Green v. Watkins, 7 Wheat. Rep. 27, 5 Cond. Rep. 218. 5 Cranch's Rep. 253. Legat's case, 10 Co. Rep. 113. Alton Wood's case, 1 Co. Rep. 51. Noy's Max. 10. 4 Co. Rep. 61. Plowd. 432. 10 Co. Rep. 62. Berwick's case, 5 Co. Rep. 94. Mr. Bibb, for the defendant, cited : Vin. Abr. tit. Prerogative (G. b. 2). 2 BI. Comm. 351, Tucker's ed. 344. Calvin's case, 7 Co. Rep. 25. Co. Litt. 2 b. 3 a. 31 a. Plowd. 229. 2 Bl. Comm. 252, Tucker's ed. 249. Hunter v. Fairfax, 7 Cranch's Rep. 619, 2 Cond. Rep. 622. Orr V. Hodgson, 4 Wheat. Rep. 460, 4 Cond. Rep. 506. Collingwood v. Pace, 1 Ventr. Rep. 417. Mooers v. White, 6 Johns. Ch. Rep. 365. 1 Bl. Comm. 392. 2 Bl. Comm. 258. 2 Bl. Comm. 278. King v. Clarke, Freeman's Rep. 172. 2 Bl. Comm. 352. Earl of Devonshire's case, 11 Co. Rep. 90. Colt v. Glover, 1 Roll. Rep. 451. Shep. Touchst. 229. Mooers v. White, 6 Johns. Ch. Rep. 365. Green v. Biddle, 8 Wh.eat. Rep. 1 ; 5 Cond. Rep. 369. 1 Marsh. Kentuck. Rep. 199. 3 Marsh. Rep. 219. 1 Monr. Kentuck. Rep. 60. 1 lAttel. Rep. 364. Fletcher v. Peck, 6 Cranch's Rep. 87, 2 Cond. Rep. 308. Barr v. Gratz, 4 Wheat. Rep. 222, 4 Cond. Rep. 426. Magdalen College case, 11 Co. Rep. 72. Plowd. Rep. 246—248, 249. Plowd. Rep. 243. 1 Marsh. ^ 279 337 SUPREME COURT. [Governeur's Heirs v, Eobertson.] Kentuck. Rep. 525. 3 Bihh's Rep. 535. 4 BibVs Rep. 225. 1 Monr. Rep. 48, 189, 138. Elmendorf v. Carmichael, 3 Littel. Rep. 473. Mr. Justice Johnson delivered the opinion of the court. This cause came up from the circuit court of Kentucky, upon a dif- ference of opinion certified from that court. ^ooo-j *The case was this : Robertus S. Brantz, through whom the -' plaintiffs make title, obtained, on the 11th of October, 1784, two grants from the commonwealth of Virginia, comprising together ten thousand acres of land lying in Kentucky. One Duncan Rose, through whom the defendants make title, obtained a similar grant, of the date of December 2d, 1785, covering a part of the same land, Robertus Brantz, at the date of his patent, was an alien, but became naturalized in Maryland on the 8th of November, 1784, less than one month after the date of his patent, and near a year before that of the defendant was obtained. Some doubts appear to have been raised on the validity of Brantz's patent at an early period; and, in the year 1796, the legislature of Kentucky passed an act, reciting that B. was an alien when the patent issued, and affirming his estate as against the rights of the common- wealth, leaving it to operate as to all other persons as if that act had not passed. B, died in 1797, leaving a son, J. B., an alien, incapable of inheriting, and owing debts to a considerable amount to the Governeurs. The son, unaware of his disability, executed a letter of attorney, under which the land was sold, and the purchasers, the Governeurs, subsequently discovering this defect, obtained another act from that state affirming their qstate. And this makes out the plaintiff's title. The defendant's title is regularly deduced through the patent to Duncan Rose. The record presents, first, a general instruction prayed for in behalf of the plaintiffs on their right to recover. And of this there can be no question, independently of the points made in the instructions moved for by the defendant, having regard to the effects, 1st, of his alien cha- racter; 2d, that of his son; and, 3d, of the compact between Virginia and Kentucky on the rights of the parties. These will be considered in their own language, and in their order. The first is, " That if the jury find that R. S. B. was an alien at the time when the patents given in evidence were procured by him, nothing passed to him by the said patent, but that it was void." Although this, as well as the subsequent prayers of the defendant, purport to present distinct propositions, it will be unavoidable that they should be considered in connection with each other, and with reference to the general prayer of the plaintiff for a charge in his favour. The defendant's object in propounding them is to repel the prayer of the ^„„„-, *plaintifr, and to obtain a charge that the jury should find in his J favour. They are introduced, in fact, as grounds upon which the prayer of the plaintiff should be rejected. And in this view of the subject, the proposition stated draws after it 280 FEBRUARY TERM, 1828. 339 [Governeur's Heirs v. Robertson.] the consideration of another, to wit : whether, although the patent to Brantz should be pronounced void, in consideration of his incapacity to take at the time of its emanation, his subsequent naturalization did not relate back so as to obviate every consequence of his alien disability. On this subject of relation, the authorities are so ancient, so uniform and universal, that nothing can raise a doubt that it has a material bearing on this cause, but the question whether naturalization in Ma- ryland was equivalent to naturalization in Kentucky. To this the ar- ticles of confederation furnish an affirmative answer, and the defendant has not made it a question. Nor, indeed, has he made a question on the subject of relation back ; yet it is not easy to see how he could claim the benefit of an affirmative answer on the question he has raised, without first extricating his cause from the eflfects of the subsequent naturalization, upon the rights derived to Brantz through his patent. The question argued, and intended to be exclusively presented here, is, vyhether a patent for land to an alien, be not an absolute nullity. The argument is, that it was so at common law, and that the Virgi- nia land laws, in some of their provisions, affirm the common law on this subject. We think, the doctrine of the defendant is not to be sustained on either ground. It is true, sir William Blackstone has expressed himself on this sub- ject with less than his usual precision and circumspection; but whether the context be considered, or his authorities examined, we shall find that this doctrine cannot be maintained. The passage relied on is found in his second volume, p. 347, 348, of Christian, in these words, " if the king grants lands to an alien, it operates nothing." But it would be doing injustice to the writer not to weigh his meaning by the words preceding and following this sentence. His language is this, " but the king's grant shall not enure to any other intent than that which is precisely expressed in the grant. As, if he grants lands to an alien, it operates nothing ; for such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant." And the authority referred to is Brooke's Ahr. Patent, 62, and Finch's Law, 110. It ought to be 111. If we could admit that this learned writer could have committed so egregious a blunder as to suppose that an alien must be made denizen before he could take by grant, as a general proposition, he might stand ♦charged with having greatly transcended his authorities. But r^o^r. when it is considered, that the effect, of an alien's being made '• denizen, is not to enable him to take lands, but to enable him to hold them against the king, we at once see, that his language is to be limited to the proposition laid down in the previous sentence, to wit : that the king's grants shall not enure to the double intent, when made to an alien, of vesting in him the thing granted, and then, by implica- tion, constituting him a denizen, so as to enable him to hold an inde- feasible estate. In the case referred to as abridged by Brooke, the latter proposition alone is laid down ; and the case in the year-books, which the author cites, affirms nothing more. This was Bagot's case, 7 Edw. IF. p. 29, which appears to have occasioned a vast-deal of discussion for several terms in the British courts, and in which Bagot, and another grantee of Vol. VI.— 36 y 2 281 340 SUPREME COURT. [Governeur's Heirs v. Robertson.] an office by the crown, brought assize, and the defendant pleaded, as to Bagot, alien nee. In that cause there was no office found, and the ques- tion on this part of the case distinctly was, whether the grant did not both vest the right to the office, and create a capacity to maintain assize to recover it. So, in a case in 4 Leon. 82, the same question was raised, where there had been an inquest of office ; and in both, the decision distinctly was, that the king's grant did not enure to an intent not ex- pressed distinctly as its object; or, in other words, to a double intent, one direct, the other incidental. In the latter case, the alien's right had been affirmed by a patent from the queen, and the point argued was, that the right of the party was protected by the act of the queen against the effect of the office found. But, in both these cases, the decision was no more than this, that the act of the crown did not in- cidentally make the party a denizen ; and while an alien, he could not be enabled, by any act of the crown, to exercise rights which apper- tained only to denizens, or to persons naturalized, or natural born subjects. ^ The other authority to which Blackstone refers, to wit. Finch, im- ports no more than that an alien shall not maintain an action real or mixed, but has no direct bearing upon the doctrine for which it seems to have been cited by the author. The Words, in the passage in Blackstone, more immediately relied on by the defendant, to wit, " if he grants to an alien, it operates nothing," are obviously taken from another passage in Brooke's Abr. Patent, 44, which article gives those words as a dictum of Keble, one of the judges. And by referring to the authority in the year-book, on which the author relies, to wit, 2 Hen. VII. 13, the dictum is there found attributed to Keble. But, in that case, as in Bagot's case, there is nothing more argued than that the king's grant shall not enure to the double purpose. And the observation of Keble is only made by way of illustration, ac- *S4n companied *by several others of a similar character, such as that J a grant of land to a felon shall not operate as a pardon ; or a grant to a company not corporate, carry with it a grant of incorpora- tion. It is clear, therefore, that this doctrine has no sufficient sanction in authority ; and it will be found equally unsupported by principle or analogy. The general rule is positively against it, for the books, old and new, uniformly represent the king as a competent grantor in all cases in which an individual may grant, and any person in esse, and not civiliter mortuus, as a competent grantee. Femes covert, infants, aliens, per- sons attainted of treason or felony, clerks, convicts, and many others, are expressly enumerated as competent grantees. Perkins, Grant, 47, 48, 51, &c. Comyn's Digest, Grant, B. 1. It behooves those, there- fore, who would except aliens, when the immediate object of the king's grant, to maintain the exception. It is argued, that there is an analogy between this case and that of the heir, or the. widow, or the husband, alien; no one of whom can take, but the king shall enter upon them without office found. Whereas, an alien may take by purchase, and hold until divested by office found. It is argued, that the reason usually assigned for this distinction, to wit, " Nil frustra agit lex," may, with the same correctness, be applied to 282 FEBRUARY TERM, 1826. 341 [Governeur's Heirs v. Robertson.] the case of a grant by the king to an alien, as to one taken by descent, dower, or curtesy : that the alien only takes from the king to return the subject of the grant back again to the king by escheat. But, this rea- soning obviously assumes as law the yery principle it is introduced to support ; since, unless the grant be void, it cannot be predicated of it that it was executed in vain. It is also inconsistent with a known and fa- miliar principle in law, and one lying at the very root of the distinction "between taking by purchase and taking by descent. It implies, in fact, a repugnancy in language. Since the very reason of the distinction between aliens taking by purchase, and by descent, is, that one takes by deed, the other by act of law ; whereas a grantee, ex vi termini, takes by deed, and not by act of law. If there is any view of the subject in which an alien, taking under grant, may be considered as taking by operation of law, it is because the grant issues, and takes effect under a law of the state. But this is by no means the sense of the rule, since attaching to it this idea would be to declare the legislative power of the state incompetent to vest in an alien even a defeasible estate. That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established, that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the r^q^o *peace of society, and a desire ^o protect the individual from arbi- L trary aggression. Hence it is usually said, that it has regard to the solem- nity of the livery of seisin, which ought not to be devested without some corresponding solemnity. But there is one reason assigned by a very judicious compiler, which, from its good sense and applicability to the nature of our government, makes it proper to introduce it here. I copy it from Bacon, not having had leisure to examine the authority which he cites for it. " Every person," says he, " is supposed a natural born subject, that is resident in the kingdom, and that owes a local allegiance to the king, till the contrary be found by office." This reason, it will be perceived, applies with double force to the resident who has acquired of the sovereign himself, whether by purchase or by favour, a grant of freehold. It remains to examine the effect of the Virginia laws upon grants made to aliens. Those laws provide that aliens may purchase war- rants for land, and pass them through all the stages necessary to obtain a patent, and may exercise every power over the inchoate interest thus acquired, in the same manner with citizens, and after returning the plat and survey to the register's office, shall be allowed eighteen months to become a citizen, or transfer their interests to those who are citizens. These provisions, it is contended, import a prohibition to issue a grant to an alien. But we think the inference by no means unavoidable; and, in addi- tion to the general and strong objections to raising an enactment by inference, consider it as unsupported either by the policy or the provi- sion of the act. It is well known that the purchaser of a warrant, under the laws of Virginia, acquired a beneficial interest in the soil, that the survey lo- cated that interest upon a particular portion of soil by metes and bounds, and the interest thus acquired was devisable, assignable, descendible, and wanted, in fact, nothing but a mere formality to give it all the at- 283 342 SUPREME COURT. [Governeur's Heirs v. Robertson.] tributes of a freehold. Hence a doubt arose, not whether an alien could acquire an interest under a warrant and survey, but whether thai inte- rest might not be subject to escheat. The object of the law was to encourage aliens to purchase and to settle the country ; and all its provi- sions on this subject were intended to enlarge his rights, not to restrict them. Aliens arriving in the country could not immediately be natu- ralized, but they might immediately enter upon those arrangements, for establishing themselves when naturalized, which were necessary to pre- cede a grant. Hence, the only true construction of the Virginia law is, that as to all the interest acquired in land previous to grant, it was intended to enlarge their rights, and secure them from escheat; while, *3431 *^^ ^° the rights which they might acquire by patent, they were -I to be left under the ordinary alien disabilities, whatever those were, which the law imposed. The Virginia act, therefore, has no influence upon the rights of the parties in this cause. The object of the next four prayers for instruction in behalf of the defendant, is, to maintain the proposition, that the act of Kentucky of 1799, which confirmed the interest of the purchasers under the letter of attorney of the son of Brantz, was in derogation of the rights of Duncan Rose, the subsequent grantee. The argument is, that on the decease of the father, without an heir that could take, the land in controversy reverted to the state, and the junior patent then fastened upon it in the ordinary manner in which it attaches to the soil when a prior grant is removed from before it. That the act of 1799 was nothing more than a junior grant for the same land, and a grant which the state was estopped from making to the prejudice of the prior patentee, as well upon general principles, as under the pro- visions of the compact between the two states. It is obvious, that in considering this argument, the court cannot place the defendant on more. favourable ground than by substituting Virginia for Kentucky, and allowing him all the rights that he might have set up against the former state. And it is equally obvious, that to admit of the right set up in favour of the junior patent's attaching as a patent upon the escheat, it must be affirmed that escheated land was liable to be taken up by patent ; whereas the act authorizes patents to issue upon ^waste and unappropriated lands exclusively, and not upon escheated property. And so it has been settled by adjudications both in Kentucky and Virginia. Elmendorf v. Carmichael, 3 lAttel. Rep. 484. It is further obvious, that as to the claim set up by the defendant on the ground of moral right and estoppel, the court will concede much more than he has a right to assume, if it allows him the benefit of his argument to the whole extent in which it may be applied to the rights and obligations of individuals. Assuming, argumenti gratia, that the stale could not supersede the right of the defendant derived under his patent, in any case in which an individual would be estopped, or might be decreed to convey : but it is only on the ground of fraud or con- tract, that the law acts upon individuals in either of the supposed cases. Fraud is not imputable to a government ; but if it were, where is there scope found for the imputation of it in the relation between a state and the patentee of its vacant lands? In selling the warrant, the state 284 FEBRUARY TERM, 1826. 343 [Shelby v. Guy.] enters into contract no farther than that the purchaser shall have that ^quantity of vacant land if he can find it. And when the patent r^.r,AA issues, it is to the patentee, if to any one, that the fraud is im- '- putable, if the land be not vacant. The state never intends to grant the lands of another ; and where the grantee is ignorant of the previous patent, the maxim, caveat emptor, is emphatically applicable to this species of contract. But to what result would this doctrine lead us ? A junior grant is to be vested with the attribute of hanging over a valid and indefeasible appropriation of soil, waiting to vest upon the occurrence of the casualty of an escheat or an indefinite failure of heirs 1 This may not happen in a hundred years ; it may not occur upon one life as in this case, but may occur after the lapse of one hundred lives. It is impossible that such a claim can be countenanced. Neither principle nor policy sustains it. And, in fact, the decision upon the first ground is fatal to the cause of the defendant upon the last ; for, upon no principle but the assumed nullity of the patent to Brantz, could any pontract be imputed to the state to make good the junior patent, under which the defendant deduces his title. In that case, the land would still have remained vacant land, and, as such, the junior patent would, of course, have taken effect upon it as a patent, and by the immediate operation of the land law, without reference to the supposed incidental rights here set up. So far this court has considered the cause as one of a new impres- sion ; but, on examining the adjudicati6ns quoted, they are satisfied, that in every point nlaterial to the plaintiffs, the case has been solemnly adjudicated in the courts of Kentucky. They will, therefore, direct an opinion to be certified in favour of the plaintiff. Cases on the effect of alienage on real estate. See 4 Cond. Rep. 347. *Shelby and others, Executors of Shelby, Plaintiffs in [*345 error, v. Guy, Defendant in error. 11 Wheaton's Reports, 361. The terms "beyond seas," in the saving clause of a statute of limitations, are to be construed as equivalent to without the limits of the state where the statute is enacted. [See note at the end of the case.] Qusere, How far this construction has been adopted by the courts of Tennessee 1 Five years' bona fide possession of a slave constitutes a title, by the taws of Virginia, upon which the possessor may recover in detinue ; and this title may be set up by the vendee of such possessor in the courts of Tennessee, as a defence to a suit brought by a third party in those courts. MR. .TONES, for the plaintiffs in error; the Attorney-General and Mr. White, for the defendant in error. 285 345 SUPREME COURT. [Shelby V. Guy.] Mr. Jjstice Johnson delivered the opinion of the court. The plaintiffs here, were defendants in the court below, in an action of detinue brought by Thomas Guy, to recover sundry slaves. The defendants below plead non detinet, and the act of limitations of the state of Tennessee, which bars the action of detinue in three years. The plaintiff joins issue upon the plea of non detinet, and files a special replication to the plea of the statute, the object of which is to bring himself within the saving in favour of absentees. The defendants demurred to this replication, but the demurrer being overruled, the parties went to trial on the general issue, and a verdict was rendered for the plaintiff in the form now usual in the action of detinue. To revise the judgment of the court in overruling the demurrer, and its decisions upon various points of law raised in the progress of the trial, this writ of error is brought. The case was this. One Dickerson, a citizen of Virginia, the father of the plaintiff's mother, was owner of a female slave named Amy, from whom the slave claimed had descended, Upon the marriage of Thomas Terry Guy with the plaintiff's mother, or soon after, and prior to the year 1778, the slave Amy passed into the possession of T. T. G., but whether, by loan, or parol gift, is a point litigated, and upon which some of the principal questions in the cause arise. From the year 1778 to 1794, the slaves remained in Virginia, in the possession of the plaintiff's father, T. T. G., when he sold her and her *^4fi1 *'iicrease to David Shelby, who thereupon removed with the J slaves to Tennessee, where he and they have ever since re- sided. In the year 1788, Dickerson made his will and died ; and the will was proved and recorded in July, 1788. In this will he says, " I lend to my son-in-law T. T. G., the negroes which he now has in his pos- session, that I lent him in the lifetime of his wife, during his natural life, viz., Coffee, Gilbert, and Amy ; and at his death I give the afore- said slaves, with their increase, to my grandsons John and Thomas Guy, and their heirs for ever." "Thoinas Guy, here named, is the plaintiff in this action ; the execu- tory devise to him and John took effect by the death of their father in 1795. John died unmarried, under age, and intestate, after his father, but before the action brought, and neither of the brothers had been in the state of Tennessee until within three years prior to the institution of the suit, but had resided in the state of Virginia. These are the material facts in the cause. The points argued have been very numerous ; but if the plaintiff has tripped in pleading, by a vicious replication, the questions on the merits are put out of the case. The points arising on the demurrer, therefore, must first be considered. The replication demurred to, states, in substance, the right of Dick- erson to the negro Amy, and the continuance of that right up to his death ; the bequest to the father of the plaintiff for life, and to the plaintiff and John after his death; the death of the father, and of John; the qualifying of the executors on the will, and their assent to the legacy; the sale by the father to Shelby in 1794; Shelby's removal with the slaves to Tennessee, and subsequent residence there, and the 386 FEBRUARY TERM, 1826. 346 [Shelby v. Guy.] residence of John up to his death, and of the plaintiff, to within three years of the bringing of this suit, in the state of Virginia. The demurrer filed to this replication is special, and assigns for cause, 1. That it states the evidence of title, and does not allege a fact. 2. That it is double, in relying on the facts both of title and of non- residence. But, claiming the right of looking back to the first fault, and other benefits appertaining to a general demurrer, to which, no doubt, he is entitled, the counsel for the defendant have raised a variety of other questions in the cause, of more interest than those specified. As, first, that the counts in the declaration are repugnant, the one being essentially a count in trover, the other in detinue ; and. Secondly, that the replication involves a departure, inasmuch as the writ claims the whole property, and the replication shows him to be entitled to no more than a moiety. *That the replication is more characterized by prolixity, than r^oAf, by science, the court will readily admit; but that it is essentially L vicious, cannot be maintained. The general object of the plaintiff is to fortify his title or demand, and this is a legitimate object. Nor can we perceive that, in doing this, he has either stated evidence where he ought to allege facts, or ten- dered to the defendant a double answer to his plea, or, rather, " distinct matters to one and the same thing, whereunto several answei^ are required." That it is redundant, and abounds in surplusage, with reference to the issue tendered, is obvious; but it prefers only one answer that will fit the plea, which is, absence from the state of Ten- nessee during the term when the statute would bar him. Yet, as he has thought proper to amplify upon the nature of his demand, if he had prostrated his own action, the law would visit him with the consequences. The argument on this point is, that having set out a joint devise to himself and his brother, he is incapable of maintaining alone a suit for the entirety of the thing devised. But, in this, we are of opinion, that the law is with him. It is true, that tenants in common must ordinarily join in an action, and that the laws of Virginia produce a severance upon the death of a joint tenant, so that the right of survivorship is abolished. But, it is also true, that in suits for an indivisible thing, a right of action survives to a tenant in common ; and this from the necessity of the case, as we conceive the authorities sufficiently maintain. Co. Litt. 198, a. Bro. Abr. tit. Tenant in Common, pi. 18. The exceptions to the counts clearly cannot be sustained. They are con-substantial, and the same plea and judgment proper to both. Aver- ring that the defendant came to the possession of the chattel by finding, does not constitute a count in trover ; an alleged conversion character- izes that form of action. Nor is it any objection to the counts, that one of them states a right to recovery founded in a possession merely, with- out the direct allegation of property, since a tortious detention may well be of that which another has no interest in, but to the temporary use or custody. Co. Litt. 286. Roll. Abr. 575. Thus, a bailee, or com- mon carrier, or sheriff, may maintain this action, and expressly against 287 347 SUPREME COURT. [Shelby v. Guy.] one who has them by delivery or finding. 2 Saund. 47. Cro. Jac. 73, et passim. We come, then, to the question raised by the demurrer upon the statute of limitations of Tennessee ; and here we are met by one of those embarrassments which necessarily grow out of our jseculiar system. North Carolina, in common with most of the old states, adopted the *3481 *^3,nguage of the statute of James in its act of limitations. .This ■^ was the law of Tennessee before its separation from that state, and continues so to this day. The persons excepted from its operation, are infants, femes covert, &c., and " persons beyond seas." During a century nearly that this law has been the local law of that country, we cannot ascertain that the courts of either of those states have been called on to decide whether it shall be construed according to its literal meaning. In the mean time, solemn adjudications have taken place in several of the states, to the purport, that persons without the jurisdiction of the country, though not actually beyond seas, are within the equity, if not within the actual meaning, of the statutes containing the same words, and borrowed from the same source. And in a case which came up to this court from Georgia, in the year 1818, it was solemnly decided, that it was impossible to give a- sensible and reasonable construction to those words according to their literal signi- fication. But, we are now informed, and as it is admitted by the oppo- site counsel, we cannot question it, that a contrary adjudication has taken place in the courts of Tennessee within the last year, for the first time. It is obvious, that without a more particular report of that ad- judication, this court could not now act finally upon its authority. But, if the majority of the court were of opinion, that an insulated decision on a point thus circumstanced, ought to control the previous decision of this court, the course would undoubtedly be to hold up this cause for advisement. That the statute law of the states must furnish the rule of decision to this court, as far as they comport with the constitution of the United States, in all cases arising within the respective states, is a position that no one doubts. Nor is it questionable^ that a fixed and received con- struction of their respective statute laws in their own Courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious, that this admission may, at times, involve us in seeming inconsistencies ; as, where states have adopted the same statutes, and their courts diflfer in the construc- tion. Yet that course is necessarily indicated by the duty imposed on us, to administer, as between certain individuals, the laws of the re- spective states, according to the best lights we possess of what those laws are. This court has uniformly manifested its respect for the ad- judications of the state tribunals, and will be very moderate in those claims which may be preferred on the ground of comity. Yet, in a case like the one now occurring, it cannot acknowledge the objection to go farther, at present, than to examine the decision formerly rendered, on the construction of these words. We have reflected, and heard arguments on our former decision, and ^ *not a doubt has been entertained, except on the question how J far we were bound to surrender an opinion, under the actual 288 FEBRUARY TERM, 1826. 349 [Shelby V. Guy.] state of difference existing between our construction, and that of the state from which this cause comes. It is true, that the words, " beyond seas," considered abstractedly, must, in every state in this union, mean something more than "without the limits of the commonwealth ;" which words the state of Virginia has very properly added to the statute of James. But, it is also true, that if the words " beyond seas," be considered with reference to the insu- lar situation of the country from which we adopted the law, they mean exactly the same as the words superadded in the Virginia law. And it was this consideration, as well as the obvious absurdity of applying the terms "beyond seas," in their literal signification, that induced this court, and has induced so many state courts, to give it the meaning of beyond the commonwealth. If equity, as applied to the construction of statutes by an eminent writer, means, " the correction of that wherein the law, by reason of its universality, is deficient ;" or, as another defines it, " interpreting statutes by the reason of them," may be applied to any case, we think it may to one, which, while it operates in restraint of common right, would, by a literal construction, make no saving in favour of persons residing in the most distant and unfrequented parts of this extensive continent. Nevertheless, as this cause must go back upon other grounds, we will, for the present, waive a positive decision on this point as applied to the state of Tennessee, trusting that the courts of the state from which this cause comes will, in due time, furnish such lights upon the fixed law of that state on this subject, as will enable the courts of the United States to come to a satisfactory conclusion upon the question. The next class of questions in the cause arise under bills of exception. The object of the defendants, in the several prayers for instructions propounded to the court, was to be let into proof of a title, without will or deed, in the father of T. T. G., from whom they purchased, and to maintain, that although that title was only derived to him by implica- tion under the limitation acts of Virginia, it was sufficient, not only to make out a defence by pleading, but by giving such facts in evidence as would be a good defence on a plea of the statute of limitations, if the suit were instituted in the state of Virginia, or to maintain detinue in a suit to recover in right of a possession under the statute in that state. With this view, he proposed to rely on the following proposi- tions : I. That the proof that Dickerson, on the marriage of Guy with his ♦daughter, had sent the slave in question with them, or to them, r#Qcn upon their going to housekeeping, and permitted her to remain L there ever after as their property, without any specific declaration of the interest vested in them, other than the will of 1788, with a variety of corroborating facts, was sufficient to sustain an inference of a gift or transfer by parol, and of such an adverse possession as might consti- tute a bar under the act of limitations of Virginia of 1705. This the court refused, on the ground that a parol gift of slaves in Virginia was, at the date of that transaction, absolutely void. In this, it is contended, the court erred, both as to the law, and as to its application to the case. As to the law, we are of opinion, that the question is not now to be Vol. VI.— 37 Z 389 350 SUPREME COURT. [Shelby v. Guy.] Stirred. We do not mean to intimate an opinion on the construction of the acts of 1757 and 1758, on this subject; but only to treat it as a decided point upon the construction of those statutes, that a parol gift of slaves mkde in Virginia, even where the possession passed, between the years 1757 and 1787, was void, or voidable; for, as to all the pur- poses of this case, it is immaterial which. The declaratory act of De- cember 31,^1787, we regard as a new enactment, taking effect from its date, as a repeal of the prior acts in those cases in which the possession passed with the gift. The possession here relied on was from 1775 to 1788, at which time the will was recorded. And here, the material question arises, whether, if void or voidable, it does not create such an adverse interest in the donee, as the statute of 1795 may attach upon, so as to vest a complete interest. And, on this point, we think the court erred in rejecting the proof For, although the gift may have been void or voidable, the fact of delivery of possession attended it, and this must have put the party to his action to reinstate himself in the enjoyment of the property. The limitation to the action of detinue in Virginia, is five years ; and here the supposed donee proves a posses- sion of ten years. There can, then, be but one doubt raised on the right of the defend- ant to the instruction here prayed, and to the admission of the evidence offered to the fact of a parol gift, and that is, whether he could avail himself of this defence in this mode. In the case of Newby v. Blakley, 3 Hen. and Munf. 57, a case strik- ingly resembling this in its circumstances, it was adjudged, that a plain- tiff, in Virginia, may recover in detinue upon five years' peaceable pos- session of a slave acquired without force or fraud. And, four months after that decision, and obviously without being apprized of it, this court, in the case of Brent v. Chapman, maintained the same doctrine. 5 Crunch's Rep. 358, 2 Cond. Rep. 279. *^fin *^^ follows, we think, that, on the same principle, such a posses- -■ sion must constitute a good defence in Tennessee. To preclude the defendant from availing himself of the benefit of that evidence which would have sustained an action for the same property by the person from whom he purchased it, would be to convert a good and valid title in Virginia, into a defeasible title in Tennessee ; a sufficient title in a vendor, into a defeasible title in his vendee ; and, by an indirect opera- tion, to make the seller liable, where a direct action could not have been maintained against him to recover the property sold. The second prayer is calculated to obtain of the court an instruction, that, after an indefinite loan to Guy the father, a subsequent devise to his children, if intended to save the slaves from his creditors, was in- operative as to Guy, and purchasers for valuable consideration claiming under him, unless with actual notice of the will. On this, it is sufficient to remark, that as there were no creditors before the court, the court was under no obligation to speculate upon the possible effect of their interests upon the case. And this gets rid of the influence of the decision in Fitzhugh v. Anderson, on the cause, as will be more particularly shown in a subsequent part of this opinion. The defendant here, was a purchaser from T. T. G. at the time when the will of the grandfather was of record. How far purchasers are af- fected with recoK^. notice, is obviously a point of local law. And we 399 FEBRUARY TERM, 1826. 351 [Shelby v. Guy.] understand, that much importance is attached to it in the jurisprudence of Virginia. Certainly, in ordinary cases, where such a source of infor- mation is open to all, those who do not avail themselves of it come with an ill grace before a court to complain of imposition. The third prayer was intended to maintain, that, on the circumstances of the case, the jury might infer both a deed, and the recording of that deed. Broad as this claim was, it is obvious, that the court was not bound to give the instruction, since it would have availed the party nothing, without the additional fact of the loss or extinction of the re- cord also. The fourth prayer had relation to the question, whether the right of action survived to the tenant in common, which has been already an- swered. As Thomas Terry Guy died before his son John, the execu- tory devise to John, and the plaintiff became vested in possession. Their right of action then accrued, and that right survived to this plaintiff, whatever may be the ultimate distribution of the slaves when recovered. This also was rightfully refused. And the same remark answers many of the exceptions taken to the charge which the court below did give, upon the sufficiency of the plaintiff's cause of action, and the form of laying it. *Other exceptions are taken to the legal doctrines of that i-^ok^ charge; one of which is, that, under the Virginia statute of ■■ frauds of 1785, the loan, with five years' possession, became a vested title in T. T. G. ; another, that upon the general doctrines of courts of law, on the subject of frauds imputable where the possession remains in one, and the right in another, this will should be adjudged a mere cover and evasion, or a new devise for the perpetration of fraud. But, on these subjects, we think it unnecessary to remark at any length ; the dates and facts do not bring the case within the operation of the statute of frauds of 1785 ; and, with regard to the general doc- trine, it never has been supposed to extend to a purchaser with notice, much less to a purchaser whom the local law affects with notice of the highest order. Had the defendant, in this instance, been a creditor of T. T. G., who had trusted him on the faith of this property, and now sought relief under the principle in Twyne's case, the decision in Fitz- hugh V. Anderson, 2.Hen. and Munf. 219, might have applied. That case was expressly decided upon the principle in Twyne's case. The complainants were legatees of their grandfather, under a will that was not recorded until three years after the creditors (who were defendants) had sold the son's slaves under execution ; slaves which he had held in possession for fifteen years, under a loan, which was never avowed until the slaves were set up for sale, and which there was obviously much cause for bringing into serious suspicion. Judgment reversed, and a venire fa,cias de novo awarded. Limitation of actions — " beyond sea," " out of the state.'' The expressions, beyond sea and out of the state, are analogous, and are to have the same construction. Murray's lessee v. Baker et al, 3 Wheat. 541, 4 Cond. Kep. 350. In order to take the case out of the exception, it is not sufficient to aver that the creditor returned to, came, and was within the state of Maryland, after the cause of action accrued, and more than three years before bringing the suit. Bond v. Jay, 7 Cranch, 350, 2 Cond. Kep. 525. Bank of Akxandria v. Dyer, 14 Peters, 141. 291 353 SUPREME COURT. *353] * Walker and Wife, Appellants, v. Cyrus Griffin's Heirs, Respondents. 11 Wheaton' a Reports, 375. Devise of the testator's estate, " one fourth part to be given to the families of G. Holloway, W, B. Blackbourn, and A. Bartlett, to those of their children that my wife shall think pro- per, but in a greater proportion to F. P. Holloway, than to any other of G. Holloway's children ; to E. P. Bartlett in a greater proportion than any of A. Bartlett's children. The balance to be given to the families of C. and J. T. GriiBn's children, in equal proportion." Held, that the children of C. and J. T. Griffin took per stirpes, and not per capita, and that the property devised to them was to be divided into two equal parts, one moiety to be assigned to each family. THIS cause was submitted without argument. Mr. Chief Justice Marshall delivered the opinion of the court. This case depends entirely on the will of Francis Peart, deceased. The testator had devised his estate to the county court of Woodford, in trust for purposes therein mentioned ; after which he adds, " should the county court of Woodford not have a right to take into possession this donation of the within will, I do request one fourth part to be given to the families of G. Holloway, William B. Blackbourn, and A. Bart- lett, to those of their children that my wife may think proper, but in a greater proportion to Francis P. Holloway than to any other of G. Hol- loway's children; to Elizabeth P. Bartlett in a greater proportion than any of A. Bartlett's children. The balance to be given to the families of Cyrus and John T. Griffin's children, in equal proportion." The devise to the county court of Woodford was held void ; and thereupon the heirs of Cyrus Griffin, who was dead at the time the will wa,s made, brought a friendly suit against the heirs of John T. Griffin. wljLO was also dead, in the circuit court for the district of Kentucky, for a division of the property. The circuit court decided, that the children were entitled to it in exclusion of the grandchildren, whose parents were living, and that all the children should take in equal pro- portion. From this decree the heirs of John Taylor Griffin have ap- pealed to this court. It is apparent, that in the devise of one fourth to the families of G. Holloway, William B,. Blackbourn, and A. Bartlett, the testator in- tended to designate the children in exclusion of the grandchildren, be- cause, he adds, " to those of their children that my wife may think proper:" obviously having the children only in his mind, and not taking ^„. ,, *grandchildren into view. When, in the same paragraph, and •) in the succeeding sentence, he uses the same word in the devise to the families of Cyrus and John T. Griffin, he must be supposed to have used it in the same sense, unless the additional words " children tQ take in equal proportion," should show a change of intention, and that the property was given to the children of the families, and not to the families themselves. The use of the words, families of Cyrus and John T. Griffin's children, 292 FEBRUARY TERM, 1826. 354 [Walker v. Griffin's Heirs.] to designate the grandchildren of Cyrus and John T. Griffin, would certainly be an unusual as well as awkward mode of describing them, and we think there is no necessity for resorting to this construction. The introduction of these words is to be readily accounted for. In the preceding devise, the testator had directed the children of two of the families to take unequally. In this he intended them to take equally ; and therefore makes that provision. The more difficult inquiry is, whether the property 'is to be divided into two equal parts, the one to be assigned to the family of Cyrus, and the other to the family of John T. Griffin ; or is to be divided equally imong all the children of the two stocks. In solving this difficulty, it becomes necessary again to resort to the preceding sentence. The families of G. Holloway, Wm. P. Blackbourn, and A. Bartlett, take, each family, as a single devisee. Whatever may be the number of persons composing the family, and however unequal may be their number, they take, collectively, distinct and equal shares by families ; each family constituting an individual devisee. This would be, we think, the natural import of the words, if unexplained by others. But, we think, this construction is strengthened by the residue of the sen- tence. The testator adds, " to those of their children that my wife may think proper, but in a greater proportion to F. P. H. than to any other of G. H.'s children; to E. P. B. in a greater proportion than to any of A. B.'s children. These words show, that the inequalities intended by the testatoi were between children of the same family, not between the families. Fran- cis P. Holloway was to have more, not than any of those who took under the devise, but than any other of G. Holloway's children. So with respect to Elizabeth P. Bartlett. In each case the share of the family is to be distributed among the children of the family at the dis- cretion of the wife ; that discretion being limited so far only that F. P. H. should have more than any other of G. H.'s children, and E. P. B. more than any of A. Bartlett's children. *We think it perfectly clear that the families take in equal r^rtcc proportions. L It is reasonable to suppose that the same intention was preserved with regard to the families of Cyrus and John T. Griffin, and the words must receive the same construction, if not controlled by those with which they are connected. Had the devise been to the families of Cyrus and John T. Griffin, the natural and obvious construction would have been that the families took equally. We are, then, to inquire, what is the effect of the additional words, " children in equal proportion." Cyrus Griffin and John T. Griffin were both dead, Cyrus leaving four, and John T. Griffin two children, who were living at the death of the tes- tator, and were the objects of this devise. JHad he intended them to take equally, the natural mode of expressing that intention would have been to devise the property to the children of Cyrus and John T. Griffin. They would then have taken individually, and not by families; but the testator directs them to take by families. Why, then, are the words, " children in equal proportions," added? The testator had, in the pre- ceding sentence, devised a part of the same property to three families, and had directed that the children of each should take unequally. z3 293 355 SUPREME COURT. [Patterson v. Winn.] Proceeding immediately to the two families of the GrifEns, it was natu- ral, though not necessary, to express his wish that the children should take equally. But neither in this, nor in the preceding devise, does he mingle the children of the different families in one mass. He speaks of them severally by families. We are therefore of opinion that the children of Cyrus and John T. GrifSn take by families, and that the property devised to them is to be divided into two equal parts, one moiety to be assigned to each family. Doe, ex dem. Patterson, v. Winn and others. 11 Wheaton'a Reports, 3S0. In general, the validity of a patent for lands can only be impeached for causes anterior to its being issued, in a court of equity. But where the grant is absolutely void, as where the state has no title, or the officer has no authority to issue the grant, the validity of the grant may be contested at law. [See note at the end of the case,] ^qc(>-i 'The laws of Georgia, in the year 1787, did not prohibit the issuing of a patent to any ^J one person for more than one thousand acres of land. The proviso in the act of assembly of the 17th of February, 1783, limiting the quantity to that number, is exclusively confined to head-rights. MR. BERRIEN and Mr. Wilde, for the plaintiff; Mr. White, for the defendant. Mr. Justice Thompson delivered the opinion of the court. This case comes up from the circuit court for the district of Georgia. And the question presented for decision appears by a certificate of division of opinion in that court, as to the admissibility of the grant offered in evidence on the part of the plaintiff. The certificate states that the plaintiff, to maintain his action, offered in evidence a patent, purporting to be a grant, in due form of law, from the state of Georgia to one Basil Jones, for seven thousand three hun- dred acres of land, including the premises in question. And also the warrant of survey upon which the said tract of land was laid off and surveyed, and the minutes of the court which granted the warrant. The defendant's counsel objected to the grant's going to the jury, affirm- ing the same to be void in law, inasmuch as no grant could issue under the laws of the state for so great a number of acres as are comprised in the said grant. On which question, so made, the court was divided in opinion. The broad ground assumed in the objection is, that the patent was absolutely void, and not even prima facie evidence of title. The ques- tion, as stated, does not distinctly present to the court the point that was probably intended to be submitted. The objection alleges the patent to be void, because, by the laws of Georgia, no grant could issue for so great a number of acres as seven thousand three hundred, without stating the limitation as to the number of acres. But, from the argu- 294 FEBRUARY TERM, 1826. 356 [Patterson v. Winn.] inent, it is understood that the limitation contended for on the part of the defendant is to one thousand acres, and that all grants for a greater quantity are absolutely void. How far it is within the province of a court of law to entertain in- quiries tending to impeach a patent, is a question upon which conflicting opinions have been held, particularly in the different state courts in this country. By some, the patent is considered only prima facie evidence of title, and open to extrinsic evidence to impeach its validity. By others, that the defect must appear upon the face of the patent, to authorize a court of law to pronounce it invalid ; and that unless the defect does so appear, the patent is only voidable, and recourse must be had to a court of chancery to vacate it. By others, it has been consi- dered, *that the powers of a court of law were not so broad as rj^ocw laid down in the former of these opinions, nor so limited as in ■- the latter, but that a court of law may inquire whether the patent was issued without authority, or against the prohibition of a statute, or whether the state had title to the land granted. It is unnecessary, if not improper, at this time, to enter into an examination which of these opinions is best founded in principle. For, so far as the question ap- plies to the present case, it has been settled by this court in the case of Polk's Lessee v. Wendell et al., 9 Cranch's Rep. 87, 3 Cond. Rep. 286. In that part of the case to which I refer, the exceptions under consideration were for causes not apparent on the face of the patent ; and the proposition stated for decision is, whether in any, and in what eases, it is allowable, in an action of ejectnaent, to impeach a grant from the state for causes anterior to its being issued. It is said, that the laws for the sale of public lands provide many guards to secure the regularity of grants, to protect the incipient rights of individuals, and, also, to protect the state from imposition. OfScers are appointed to superintend the business, and rules are framed prescribing their duty. These rules are, in general, directory, and when all the pro- ceedings are completed by a patent, issued by the authority of the state, a compliance with these rules is presupposed. That every pre- requisite has been performed, is an inference properly deducible, and which every man has a right to draw, from the existence of the grant itself. It would be extremely unreasonable to avoid a grant in any court for irregularities in the conduct of those who are appointed by the government to supervise the progressive course of a title, from its commencement to its consummation in a patent. But, in order to guard against the conclusion that this doctrine would lead to, closing the door against all inquiry into any matter whatever beyond the grant for the purpose of avoiding it, the court adds, that the great principles of justice and of law would be violated, if there did not exist some tribunal to which an injured party might appeal, and in which the naaans by which an elder title was acquired might be examined, if it had been acquired by the violation of principles essential to the validity of a contract ; but that a court of equity is the more eligible tribunal, in general, for these questions, and they ought to be excluded from a court of law. But the court say, there are cases in which a grant is absolutely void, (or inoperative,) as where the state has no title to the thing granted, or where the officer had no authority to issue the grant. In such cases, the validity of the grant is necessarily examinable at law. 295 357 SUPREME COURT. [Patterson v. Winn.] This doctrine was again recognised and sanctioned by this court five years afterwards, when the same cause, 5 Wheat. Rep. 293, 4 Cond. *3581 *^^P' ^^^' ^^^ ^ second time under consideration ; and it is in J coincidence with the rule settled in the supreme court of New York in the case of Jackson v. Lawton, 10 Johns. Rep. 23. We may, therefore, assume as the settled doctrine of this court, that if a patent is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or the state had no title, it may be impeached collaterally in a court of law, in an action of eject- ment. But, in general, other objections and defects complained of must be put in issue, in a regular course of pleadings, on a direct proceeding to avoid the patent ; and we are not aware of any contrary rule pre- vailing in the state courts of Georgia. But, so far as we have any in- formation on the subject, the practice there is in accordance with the rule laid down by this court. The objection in this case to the admissibility of the grant in evi- dence, is, that it was issued without the authority of law, and in violation of certain statutes of the state of Georgia, which, it is alleged, prohibit the issuing of a grant to any one person for more than one thousand acres of land ; and if the statutes referred to will warrant this construction, the objection was well taken, and can be sustained in a court of law. And this leads to an examination of those statutes as applicable to the grant in question. The grant bears date on the 24th of May, 1787, and is for seven thousand three hundred acres of land in the county of Franklin, de- scribed by metes and bounds, and referring to a plat of the same there- unto annexed. No consideration is expressed in the grant, or any designation of the nature of the rights which made up the quantity of land mentioned in the grant, but it is in the common form prescribed by statute. The proceedings of the court of Franklin county, on the application of Basil Jones, accompany the grant, by which it is ordered that he have seven thousand three hundred acres in lieu of part of old warrants of John Peter Wagnor — bounty reserved. This shows that the aggregate quantity of land mentioned in the grant was made up of sundry old warrants, and affords also an inference of the existence of a practice of consolidating a number of warrants in one grant ; and there is nothing in the land laws of Georgia prior to the year 1794, at variance with such a practice. The limitation as to quantity will be found to relate to warrants for head-rights, and not to grants ; and, as warrants were transferable, no objection existed to their being united in one grant. The land law of Georgia is comprised under several statutes, passed at different periods, varying and modifying the system occasionally, as policy required. But all being in pari materia, are to be looked to as *'iW\ *°'*® statute, in explaining their meaning and import. Under J these laws, there were various ways in which persons became entitled to rights, and could obtain warrants for land; such as head- rights, according to the number of a family ; bounties to soldiers and to citizens, and likewise for the encouragement of certain manufactures, &c. And for the purpose of ascertaining and determining whether applicants were entitled to warrants, a land court was instituted in each county, to receive applications for lands, and grant warrants for 296 FEBRUARY TERM, 1826. 359 [Patterson ». Winn.] surveys to such as should show themselves entitled to land, according to the provisions of the land lawrs. A county surveyor was required to be appointed by each county, who was authorized to lay out and survey, to any person who should apply to him, the land for which a warrant had been obtained. And he was required to record, in an office to be kept for that purpose, all surveys by him made, so as to enable those who had any objections to make to the passing of the grant, to enter a caveat, which was to be tried by a jury of twelve men, sworn to try the matter according to law and equity. And under the act of July 17th, 1783, Prince's Dig. 266, sec. 26, this was declared to be final and conclusive. An appeal was afterwards given to the governor and executive council, sec. 56 of the Dig., who were required and em- powered to proceed to decide such caveats, in manner and form as they should think most conducive to justice; and expressly declaring, that from their decision there should be no appeal. And this was the exist- ing law at the time the grant in question issued. By a subsequent statute. Dig. sec. 83, the power of hearing and determining such ap- peals, and signing grants, was vested in the governor alone. To permit an inquiry whether a warrant, obtained under such guards and checks, was authorized by law, would be opening the door to end- less litigation, and against the spirit and policy of the land laws in ge- neral, as well as the letter of the statute, which provides for caveats, and which declares the ultimate decision thereon to be final and conclu- sive. If the validity of the warrants cannot be called in question, the issuing of the grant follows, as matter of course, and cannot be said to be without authority, unless the statute prohibits the issuing of a grant for more than one thousand acres of land. The act relied upon on the part of the defendant, as containing such prohibition, is that of the 17th of February, 1783, Dig. sec. 32, and is to be found in the proviso to the first section. The enacting clause re- lates entirely to head-rights, and declares, that each master or head of a family, shall be allowed, as his own head-right, and without any other or further charges than the office and surveying fees, two hundred acres ; and shall also be permitted to purchase, at the rates therein spe- cified, *a further quantity,according to the number of head-rights r^ofjn in such family. Provided the quantity of land granted and sold L to any one person shall not exceed one thousand acres, and that such person do live on and cultivate a part of the said land twelve months, before he shall be entitled to a grant for the same. The word granted is said to be used here in its technical sense, as synonymous with patent, and to imply a general prohibition to issue a grant to any one person for more than one thousand acres. Admitting this to be the sense in which the term is used, the consequence would not follow that is contended for. The term is here used in the proviso ; the office of which is, to limit and restrict the operation of the enacting clause. The enacting clause relates entirely to head-rights, and is with- out limitation as to quantity ; that depended on the number of the family. The master or head of the family is allowed two hundred acres as his own head-right, on paying office and surveying fees, and is permitted to purchase, at the rate therein mentioned, any further quan- tity, according to the number of head-rights in his family. The pro- viso however, limits the quantity to one thousand acres; but the limir Vol. VI.— 38 297 360 SUPREME COURT. [Patterson v. Winn.] tation IS upon the subject-matter of the enacting clause, to wit, head- rights. The enacting clause speaks of two modes of acquiring these head-rights. One, a gratuity allowed to the head of the family ; the other, a purchase. And the words granted and sold, as used in the proviso, may well be construed in reference to these two modes of ac- quiring land. And the proviso is equivalent to saying, that no one per- son shall be allowed, on his own head-right, and on the purchase of head-rights in his family, more than one thousand acres. But this does not prohibit him from purchasing other warrants, and including all in one grant when it is issued. That the word granted, as here used, has reference to the warrant or incipient step towards acquiring the title, and not to the consumma- tion of it by grant, is evident both from the subsequent part of the pro- viso, and from the use of the same word, as synonymous with warrant in other parts of the land laws. By the proviso, the person to whom land is granted and sold, is required to live on, and cultivate a part of the said land twelve months, before he shall be entitled to a grant for the same. To give to the word granted, in the former part 9f the sen- tence, the same meaning as to the word grant in the latter part, would involve gross inconsistency. This construction is corroborated by the enacting clause in the third section of the same act, containing, substantially, a like provision, that every person applying by head-rights as aforesaid, shall* previous to his obtaining a grant for his land, or having it in his power to dispose of #^fin *^^^ same, (otherwise than by will,) settle and improve a part -I of such tract or tracts as he may obtain a warrant and survey of, &c. And, in a subsequent dct, passed the 23d of December, 1789, Dig. sec. 85, the very word granted is used as the act of the land court, whose authority extended only to the issuing of warrants, and not grants. The enacting clause gives to three or more justices of the peace, in their respective counties, the same powers that had been exercised by four justices and an assistant justice, under a former act ; provided that the said three or more justices shall each of them sign all warrants for land by them granted. Other parts of these land laws might be referred to, to show that this word is not always used in a technical sense as synonymous with patent. And that it is not so used in the proviso to the act of 1783, we think is very evident ; and throughout all these laws, so far as we have been able to discover, whenever there is a limitation to one thou- sand acres, it is applicable to the warrant, and not to the grant. It is clearly to be inferred, from various parts of these land laws, that warrants were transferable. Thus, in one of the earliest acts passed on the subject in the year 1777, Dig. 261, it is provided, that all persons who have had lands ordered them, and have not taken out grants for the same, or sold their warrants or rights, or are either dead, or left the state, such person or persons as have bought such warrants, or rights and titles, and continued in this state, shall have such lands granted them, agreeably to such order or warrant so purchased. And, the prohibition afterwards in the year 1794, Dig. 280, to survey or renew transferred warrants, necessarily implies, that previous to that time, such transfers were sanctioned by the land laws ; and, if so, 298 FEBRUARY TERM, 1826. 361 [United States v. Amedy.] there could be no reason why a number of such warrants should not be consolidated, and included under one grant, although the aggregate quantity might exceed one thousand acres. There might be very good reason for putting this limitation upon warrants for head-rights, as the settlement and improvement of the country might be thereby promoted. That grants for more than one thousand acres were sanctioned, is evident from the act of the 23d of December, 1789, (exemplification produced,) fixing the fees of the officers of the state; by which the governor is allowed six dollars for signing a grant of land exceeding one thousand acres. So, also, in the act to revise and amend the above act, passed the 18th of December, 1792, Dig. 173, the governor is allowed, on all grants above one thousand acres, at and after the rate of two dollars for every thousand acres therein contained. Dig. 173. Upon the whole, therefore, without pursuing this examination further, we are satisfied, that in the year 1787, when the grant in question was *issued, the land laws of Georgia did not prohibit the issuing of r#o(!o a patent to any one person for more than a thousand acres ; and '■ that the grant offered on the trial is not, therefore, void in law, and should have been admitted in evidence. Patents for land. See notes of cases, 3 Cond. Rep, 360. The United States v. Amedy. 11 Wheaton's Reports, 392. Under the act of the 26th of May, 1790, ch. 38, copies of the legislative acts of the several states, authenticated by having the seal of the state affixed thereto, are conclusive evidence of such acts in the courts of other states, and of the union. No other formality is required than the annexation of the seal ; and, in the absence of all contrary proof, it must be pre- sumed to have been done by an officer having the custody thereof, and competent authority to do the act. [See note at the end of the case.] Under the crimes act of the 26th of March, 1 804, ch. 393, s. 2, on an indictment for destroy- ing a vessel with intent to prejudice the underwriters, it is sufficient to show the existence of an association actually carrying on the business of insurance, by whose known officers de facto the policy was executed, and to prejudice whom the vessel insured was destroyed ; without proving the existence of a legal corporation authorized to insure, or a compliance on the part of such corporation with the terms of its charter, or the validity of the policy of insurance. The terms " any person or persons," in the act, extend to corporations, and bodies politic, as well as to natural persons. THE prisoner, John B. Amedy, was indicted in the circuit court of Virginia, under the act of congress of the 26th of March, 1804, ch. 393, for destroying a vessel with intent to prejudice the underwriters, and after a verdict of guilty, his counsel moved the court for a new trial upon the following grounds : 299 362 SUPREME COURT. [United States v. Amedy.] 1. That the exemplification of the acts of the legislature of the state of Massachusetts, incorporating the Boston Insurance Company, (who were the underwriters,) given at the trial, was not admissible in evi- dence as a sufficient verification thereof The papers given in evi- dence were printed copies of the acts, with certain erasures and inter- lineations in writing, and to the copy of each act was annexed a sepa- *^fi"l ""^^^ *attestation in the following words ; " a true copy, attest, '*■' Edward D. Bangs, secretary." The copies were attached to- gether, and exemplified under the great seal of the state of Massachur setts, with the following certificate annexed : " Commonwealth of Mas- sachusetts. Secretary's department, Nov. 12th, 1825. I certify that the printed copies of the following acts, viz., ' an act to define the powers, duties, and restrictions of insurance companies' — ' an act authorizing the several insurance companies in this commonwealth to insure against fire,' — ' an act to incorporate the Boston Insurance Company' — ' an act to incorporate the Commonwealth Insurance Company' — and ' an act in addition to an act, entitled, an act to incorporate the Coinmon- wealth Insurance Company ;' to which printed copies this certificate is annexed, have been by me compared with the original acts on file in this office, and that the same are now true copies of the said original acts, except the usual attestation of enactment, and signatures subjoined to each act. In testimony whereof, I hereunto set my hand, and have affixed the seal of said commonwealth, the day and year above men- tioned. Edward D. Bangs, Secretary of the Commonwealth." 2. That before the policy of insurance underwritten by the Boston Insurance Company could be given in evidence, it was necessary to prove that the subscription to the stock, and the payment of such sub- scription, as required by the act of incorporation, had actually been made. The policy of insurance was admitted in evidence by the court below, without proof that the subscription to the gtock had actually been made ; it being proved that there was a company in Boston called the Boston Insurance Company, doing the business of insurance, and paying losses when incurred, and that the paper produced was exe- cuted after the manner in which they usually made their policies of insurance. 3. That the policy ought to have been proved to be executed by the authority of the company, in such manner as to be legally binding on them. 4. That the court instructed the jury " that it was not material whether the company was incorporated or not ; and it was not material whether the policy were valid in law or not ; that the prisoner's guilt did not dejjend upon the legal obligation of the policy; but upon the question whether he had wilfully and corruptly cast away the vessel, as charged in the indictment, with intent to injure the underwriters. The judges of the court below having been divided in opinion upon the motion for a new trial, the case was brought before this court upon a certificate of that division. Mr. Worthington and Mr. Coxe, for the prisoner, cited : Jones's case, „„ ., *2 East's Cro. Law, 952. 2 East's Cro. Law, 953. Moffat's case, '*"*-l 2 East's Cro. Law, 854. 2 Leach, 483. King v. Gillson, 1 Taunk Rep. 95. United States v. Johns, 4 Dall. Rep. 412. Henriquez v. The Dutch West India Company, cited in 2 Lord Raym. 1535. 4 Com. Dig. 300 FEBRUARY TERM, 1826. 364 [United States v. Amedy.] 468, note a. Am. ed. King v. Harrison, 1 Leach, 180. 2 East's PL Cro. 927, 988. Dougl. Rep. 153. 4 Com. Dig., 468, note (a), Am. ed., note (t). Russell on Crimes, 1495. The Attorney-General cited : Hawk. PL Cro., ch. 70, s. 7. 2 East's PL Cro. 948. 2 East's Cro. Law, 988. 1 Leach, 215. 2 Inst. 736. 1 Mod. Rep. 164. 1 ^oorfes. Rep. 195. 1 jBZ. Cojwm. 476. Mr. Justice Story delivered the opinion of the court. The first question for consideration is, whether the evidence of the act of incorporation of the Boston Insurance Company, disclosed upon the record, was admissible as a sufficient verification thereof. It is mat- ter of most serious regret, that an exeipplification so loose and irregular, should have been permitted to have found its way into any court of justice. As it has, it is our duty to decide upon its legal sufficiency. It is under the seal of the state, and verified by the signature of its secretary. It is said that this is not enough, and that it ought to be shown, that the secretary had authority to do such acts. This objection must be decided by an examination of the act of congress of the 26th of May, 1790, prescribing the mode in which the public acts, records, and judicial proceedings of each state, shall be authenticated, so as to take effect in every other state. That act provides, " that the acts of ihe legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto." No other or further formality is required ; and the seal itself is supposed to import absolute verity. The annexation must, in the absence of all contrary evidence, always be presumed to be by a person having the custody thereof, and competent authority to do the act. We know, in point of fact, that the constitution of Massachusetts has declared, " that the records of the commonwealth shall be kept in the office of the secretary." But our opinion proceeds upon the ground, that the act of congress requires no other authentica- tion than the seal of the state. The other objections to the exemplification are, that the acts are printed copies with erasures and written interlineations, not so annexed as to afford perfect certainty that they are the identical copies to which the secretary's certificate was originally annexed. We think these ob- jections cannot be maintained in point of law. The copies must be pre- sumed to be the original copies, in the same state in which they were ♦originally annexed. Any subsequent alteration or subtraction r^ooc would be a public crime of high enormity ; and the commission '- of a crime is not to be presumed. The certificate of the secretary, taken together, shows that he did not mean to state that the printed copies had not been varied by writing, so as to be true copies, for he adds the phrase, they are now true copies of the original acts. The original print is still visible throughout, and the alterations in writing are mere verbal alterations, not in the slightest degree varying the sense or effect of any single clause in which they occur ; and, to afford additional proof of identity, the secretary has on each copy annexed his own signature with an attestation of its being a true copy. There is, therefore, no presumption, from the face of the papers, or otherwise, of anv alteration or addition since the seal of the state was annexed. 2A 301 365 SUPREME COURT. [United States v. Amedy.] The annexation of the usual attestation of the enactment, and signatures lo the acts, was not necessary. It is sufficient that their existence and time of legal enactment is shown. Our opinion, therefore, upon this question is, that the papers were properly admitted in evidence. The next question is, whether before the policy of insurance, under- written by the Boston Insurance Company, could be given in evidence, it was necessary to prove that the subscription to the stock, and the payment of such subscription as required by the act of incorporation had been made. In our opinion, it was not. This is ndt the case where a suit is brought by the corporation to enforce its rights, where, if the fact of its legal existence is put in controversy upon the issue, the cor- poration may be called upon to establish its existence. The case of Henriquez and Van Moyses v. The Dutch West India Company, cited in 2 Lord Raym. 1535, as decided before lord King, whatever may be its authority, was of that sort, and, therefore, carries with it an obvious distinction ; nor is this the case of a quo warranto, where the govern- ment calls upon the company to establish its legal corporate powers and organization. The case here is of a public prosecution for a crime, where the corporation is no party, and is merely collaterally introduced as being intended to be prejudiced by the commission of the crime. Under such circumstances, we think, nothing more was necessary for the government to prove, than that the company was de facto organized, and acting as an insurance company and corporation. The very pro- curement of a policy by the prisoner, to be executed by the company, was of itself prima facie evidence for such a purpose. In cases of the murder of officers, it is not necessary to prove that they are officers by producing their commissions. It is sufficient to show that they act de facto as such. In cases of piracy, it has been held sufficient to eslab- *^fifi1 ^^^^ *^^'^ proprietary title to the ship by evidence of actual pos- J session of the party claiming to be owner. These are analogous cases, and furnish strong illustrations of the general principle. The same answer may be given to another objection, and that is, that the policy ought to have been proved to be executed by the authority of the company, in such manner as to be binding on them. The actual execution of the policy by the known officers of the company de facto, is sufficient. The next question arises upon the instruction of the court, " that it was not material whether the company was incorporated or not ; and it was not material whether the policy were valid in law or not; that the prisoner's guilt did not depend upon the legal obligation of the policy ; but upon the question whether he had wilfully and corruptly cast away the vessel, as charged in the indictment, with intent to injure the actual underwriters." We think this opinion correct. The act of congress of the 26th of March, 1801, ch. 40, on which this indict- ment is framed, declares, " that if any person shall, on the high seas, wilfully and corruptly cast away, &c., any ship or vessel, of which he is owner, &c., with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any policy or policies of insurance thereon, &c., the person or persons offending therein, &c. &;c., shall suffer death. The law punishes the act when "done with an 302 FEBRUARY TERM, 1826. 366 [United States v. Amedy.] intent to prejudice; it does not require that there shall be an actual prejudice. The prejudice intended is to be to a person who has under- written, or shall underwrite, a policy thereon, which, for aught the prisoner knows, is valid ; and does not prescribe that the policy should be valid, so that a recovery could be had thereon. It points to the in- tended prejudice of an underwriter de facto. The case of the King v. Gillison, 1 Taunt. Rep. 95 ; 2 Leach, 1007, did not turn upon this point. That was an indictment for maliciously setting fire to a house, with intent to defraud the London Assurance Company of houses and goods from fire. It was necessary to prove that the household goods in the house had been actually insured for the prisoner by the company. A policy had been executed by the company, on these goods, in another house, and subsequently, upon the removal of the prisoner to the house set on fire, a memorandum was endorsed on the policy, agreeing that the removal of the goods should be allowed. This memorandum was unstamped, and by statute was not admissible in evidence. Six judges against five held the evidence inadmissible, upon the ground that the prohibition was intended to be universal. The existence, therefore, of the insurance itself, could not be established. If there had been proof that the policy was executed, the question might have arisen, whether *it was necessary further to prove its legal validity in all other r^o/.™ respects. The argument at the bar, drawn from the known L law as to forgeries, is, we think, pertinent. In those cases, when they depend on the common law, actual prejudice is not necessary to be proved ; and, of course, the validity of the instrument is entirely waived. Another question, not raised in the court below, has been argued here, and upon which, as it is vital to the prosecution, we feel ourselves called upon to express an opinion. It is, that a corporation is not a person within the meaning of the act of congress. If there had been any settled course of decisions on this subject, in criminal cases, we should certainly, in a prosecution of this nature, yield to such a con- struction of the act. But there is no such course of decisions. The mischief intended to be reached by the statute is the same, whether it respects private or corporate persons. That corporations are, in law, for civil purposes, deemed persons, is unquestionable. And the citation from 2 Inst. 736, establishes, that they are so deemed within the pur- view of penal statutes. Lord Coke, there, in commenting on the statute of 31 Eliz. ch. 7, respecting the erection of cottages, where the word used is, " no person shall," &c., says, " this extends as well to persons politic and incorporate, as to natural persons whatsoever." In the case of the King v. Harrison, 1 Leach, 180, 2 East's PL Cro. 927, 988, it may, perhaps, be matter of some doubt, whether the point was actually decided by the court. But, if it was, it mainly rested upon a, peculiarity of construction which grew out of the statute of 31 Geo. 11., ch. 22, s. 78, which professed to cure doubts of the meaning of these words in other antecedent statutes upon similar subjects, leaving that on which the indictment was framed untouched. Finding, therefore, no authority at common law, which overthrows the doctrine of lord Coke, we do not think that we are entitled to engraft any such con- structive exception upon the text of the statute. 303 367 SUPREME COURT. [The Antelope.— Williams v. The Banli of the United States.] Upon the whole, it is to be certified to the circuit court of Virginia, that the decisions of that court, upon the points of law arising at the trial, were correctly decided. Authentication of papers under the act of congress. See notes, 3 Cond. Bep. 305. *368] *The Antelope. The Vice-Consuls of Spain and Portugal, Libellants. 11 Whealon's Reports, ixa. EXPLANATION of the former decree of the court in the same cause, 10 Wheat. Rep. 66, 6 Cond. Rep. 30. Williams, Plaintiff in error, v. The President, Directors and Company of the Bank of the United States, Defendants in error. 11 Wheaton's Reports, Hi, Where there is a joint judgment against several defendants, and one only sues out the writ of error, without joining the others, it is irregular ; but if the others refuse to join in it, qusere, whether the plaintiff may not have summons and severance t [See note at the end of the case.] IN this case, in which Mr. Wright was for the plaintiff" in error, and Mr. Webster, for the defendants : Mr. Chief Justice Marshall stated, that the writ of error must be dismissed, it having issued irregularly. The judgment in the circuit court of Ohio was a joint judgment, upon a joint action for money lent, against three defendants; and the writ of error was sued out by one of the defendants in his own name only, without joining the others. The court was of opinion, that the writ of error ought to have been in the name of the three ; and if the others should refuse to join in it, that it would deserve consideration whether the present plaintiff" might not have summons and severance. Writ of error dismissed. OfiQT *P'i''ties to a writ of error. *o6.7j If the heirs be made parties by order of the court in which the suit is brought, and judgment is entered against them by default for want of a plea, upon a summons and count 304 FEBRUARY TERM, 1826. 369 [Barnes v. Williams.] against the original defendant, they may sue out a writ of error and reverse the judgment. Mocker's heirs v. Thomas, 7 Wheat. 330, 5 Cond. Rep. 334. 1 If judgment, in an action of trespass, be rendered against one defendant by default, and in favour of the other defendant upon a plea, the former may alone bring a writ of error. Ibid. On the trial of a suit in the district court of the United States for the eastern district of Louisiana, one of the defendants took a separate defence ; and he afterwards prosecuted a writ of error to this court, without joining the other two defendants in the writ. The other de- fendants also issued a separate writ of error ; and the plaintiffs in error in each writ gave several appeal bonds. The court overruled a motion to dismiss the cause ; the ground of the motion being, that but one writ of error could be sued out, and that all the defendants should have united in the same. Cox and Dick v. The United States, 6 Peters, 173. Peters's Digest, « Error and writ of Error." Barnes and others v. Williams. 11 Wheaton's Reports, Hi. Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sutficient evidence to establish them, this court will not render a judgment upon such an imperfect special verdict, but will remand the cause to the court below, with direc- tions to award a venire facias de novo. [See notes at the end of the case.] THIS cause was argued by Mr. Wickliffe and Mr. Talbot, for the plaintiffs ; and by Mr. White and Mr. Isaacks, for the defendant. Mr. Chief Justice Marshall stated, that, upon inspecting the record, it had been discovered, that the special verdict found in the case was too imperfect to enable the court to render a judgment upon it. The claim of the plaintiffs being founded upon a bequest of certain slaves, it was essential to a recovery at law, that the assent of the executor to the legacy should be proved. Although, in the opinion of the court, there was sufficient evidence in the special verdict from which the jury might have found the fact, yet they have not found it, and the court could not, upon a special verdict, intend it. The special verdict was *defective in stating the evidence of the fact, instead of the fact r^nmn itself. It was impossible, therefore, that a judgment could be •- pronounced for the plaintiff. So, as to the defendant's defence under the statute of limitations, the special verdict did not find any facts by which the court could ascertain at what time the right of action ac- crued. It was not stated that the plaintiff and defendant were ever resident in the same state at the same time. Although it was found, that E. D. Barnes, one of the plaintiffs, came into the state of Ten- nessee after he arrived at the age of twenty-one years, and more than three years before the suit was brought, yet it was not found, that during any part of that time, the defendant, Williams, was resident in that state. The case was, therefore, too imperfectly stated to enable the court to decide the questions upon which the opinions of the judges of the circuit court were opposed, and the cause was remanded to that court, with directions to award a venire facias de novo. Vol. VI.— 39 2 a 2 305 370 SUPREME COURT. [Urvited States v. Kelly.] Verdict. Cases, as in perfect and imperfect verdicts. See notes, 4 Cond. Eep. 101. Decisions on defects cured hy, verdict. See notes, 1 Cond. Rep. 326. The United States v. Kelly and others. 11 Wheaton's Reports, 417. Although the crimes act of 1790, ch. 36, s. 12, does not define the offence of endeavouring to make a revolt, it is competent for the court to give a judicial definition of it. The offence consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of the commander, with intent to remove him from his command, or against his willitp take possession of the vessel by assuming the government and navigation of her, or by transferring their obedience from the lawful commander to some other person. [See note at the end. of the, case.] THE defendants, Kelly and others, were indicted jn the circuit court for the district of Pennsylvania, for that the defendants, on the 24th of December, 1824, being seamen on board a merchant vessel of the United States, called the Lancaster, on the high seas, feloniously endeavoured *^7n **° make a revolt in the said vessel, contrary to the act of con- ^' J gress of the 30th of April, 1790, c. 36, s. 12. The defendants were found guilty, and moved the court in arrest of judgment, upon the ground, " that the act of congress does not define the ofience of endeavouring to make a revolt, and that it was not competent to the court to give a judicial definition of a crime heretofore unknown." The opinions of the judges of the court below being divided upon this motion, the case was certified to this court for determination. The cause was submitted without argument by the Attorney-General, for the United States, no counsel appearing for the prisoners. Mr. Justice Washington delivered the opinion of the court. This case comes before the court upon a certificate of a division of opinion of the judges of the circuit court for the eastern district of Pennsylvania, upon the following point assigned by the defendants as a reason in arrest of judgment, viz. " that the act of congress does not define the offence of endeavouring to make a revolt, and it is not com- petent to the court to give a judicial definition of an offence heretofore unknown." This court is of opinion, that although the act of congress does not define this offence, it is, nevertheless, competent to the court to give a judicial definition of it. We think, that the ofience consists in the endeavour of the crew of a vessel, or any one or more of them, to over- throw the legitimate authority of her commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by trans- 306 FEBRUARY TERM, 1826. 371 [United States v. Tappan.] ferring their obedience from the lawful commander to some other person. Certificate accordingly. HeBoli. An endeavour to make a revolt, is an offence within the twelfth section of the act of April SO, 1790, c. 36, if committed in a foreign port: the eectioii does not confine the penalty to cases on the high seas. United States v. Keefe, 3 Mason, 475. It seems, that to constitute the offence of endeavouring to make a revolt in a ship, within the twelfth section of the act of congress of April 30th, 1790, ch. 36, the attack on the master should be accompanied by some evidence, indicating, on the part of the assailants, an intention to take possession of the vessel. United States v. Smith et ah, 3 Wash. C. C. E. 78. Any confinement of the master, whether by depriving him of the use of his limbs, or by shutting him in the cabin, or by flitimidation, preventing him from the free use of every part of the vessel, amounts to a confinement of the master within the same section. United States V. Sharp et al., 1 Peters's C. C. R. 118. Such oflfence, if committed within the mouth of a foreign river, which is a mile and a half wide) is within the act of congress. United States v. Smith et al., 3 Wash. C. C. E. 78. Laws which create crimes, ought to be so explicit in themselves, or by reference to '^some other standard, that all men subject to their penalties may know what acts it is r^oiro their duty to avoid. United States v. Sharp et al., 1 Peters's C. C. R. 118. L ** ' •^ The " making a revolt in a ship," in the twelfth section of the act of April 30th, 1790, cb. 36, is not a clear and unambiguous description of an offence. Ibid. One who joins in the general conspiracy, and, by his presence, countenances acts of violence, but who does not individually use force or threats, to compel the master to resign the command of the vessel, is guilty of the offence of confining the master. 3id. A master of a Vessel may so conduct himself, as to justify the officers and crew in placing restraints upon him, to prevent his committing acts, which might endanger the lives of all the persons on board ; but an excuse of this kind must be listened to with great caution, and such measures should cease whenever the occasion for them ceases. Ibid. If the master of a vessel is restrained from performing his duties by such mutinous conduct in bis crew, as would reasonably intimidate a firm man, this is a confinement within the mean- ing of the act of congress. United States v. Bladen, 1 Peters's C. C. K. 213. The circumstance that the master went armed to every part of the ship, if it was necessary for his safety that he should protect himself, will not vary the case. Ibid. Seizing the person of the master, although the restraint is but momentary, is a confinement prohibited by law, and such conduct is not excused or justified, by a previous battery on the seameii, to enforce a command which the seamen ought to have performed. Ibid. The United States v. Tappan and others. 11 Wheaton's Reports, 419. THE words " true value," in the eleventh section of the duty act of the 20th of April, 1818, c. 361, mean the actual cost of the goods to the importer at the place from which they were imported, and not the current market value of the goods at such place. If the collector, in fact, suspects that the goods are invoiced below the current market value thereof, at the place from which they were • imported, but does not suspect that they were invoiced below the true and actual cost thereof to the importer, the collector has no right to direct an appraisement. 307 372 SUPREME COURT. [Chace v. Vasquez. — Mills v. The Bank of the United States.] But, whenever, in the opinion of the collector, there is just ground to suspect that the invoice does not truly state the actual cost of the goods, he may direct the appraisement, and is not bound to disclose the *37^1 *g'^'"^'"^s upon which he forms that opinion, whether it is formed -' from his knowledge or information of the current market price of the goods, or other circumstances affording grounds to suspect the invoice to be fraudulent. Chace and others, Appellants, v. Vasquez, the Consul-General of Portugal, Respondent. 1 1 Wheaton's Reports, 429. On a libel in personam for damages, if the court decrees that damages be recovered, and that commissioners be appointed to ascertain the amount thereof, no appeal will lie from such a decree until the commis- sioners have made their report ; this not being a final decree. Mills, Plaintiff in error, v. The President, Directors, and Com- pany of the fiank of the United States, Defendants in error. 1 1 Wheaton's Reports, 43J. No precise form of notice to the endorser of a promissory note is necessary ; and it is not necessary to state in the notice, who is the holder ; nor will a mistake as to the date of the note vitiate the notice if it conveys to the party a sufficient knowledge of the particular note which has been dishonoured. [See note at the end of the case.] It is not necessary that the notice should contain a formal allegation that it was demanded at the place where payable. It is sufficient that it states the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. ^n» i-1 *By the general law, demand of payment of a bill or note must be made on the "'J third day of grace; but where a note is made for the purpose of being negotiated at a bank, whose custom is to demand payment, and give notice on the fourth day, that custom forms a part of the law of the contract ; and it is not necessary that a personal know- ledge of the usage should be brought home to the endorser for that purpose. The general rule of law, requiring proof of the title of the holders of a note, may be modified by a rule of court, dispensing with proof of the execution of the note, unless the party shall annex to his plea an affidavit that the note was not executed by him. THIS cause was argued by Mr. Wright, for the plaintiff in error ; and by Mr. Webster, for the defendants in error. 308 FEBRUARY TERM, 1826. 374 [Mills u. The Bank of the United States.] Mr. Justice Story delivered the opinion of the court. This is a suit originally brought in the circuit court of Ohio, by the Bank of the United States, against A. G. Wood and George Ebert, doing business under the firm of Wood and Ebert, Alexander Adair, Horace Reed, and the plaintiff in error, Peter Mills. The declaration was for three thousand six hundred dollars, money lent and advanced. During the pendency of the suit. Reed and Adair died. Mills filed a separate plea of non assumpsit, upon which issue was joined : and upon the trial, the jury returned a verdict for the Bank of the United States for four thousand six hundred and forty-one dollars ; upon which judg- ment was rendered in their favour. At the trial, a bill of exceptions was taken by Mills, for the consideration of the matter of which the preselit writ of error has been brought to this court. By the bill of exceptions it appears, that the evidence offered by the plaintiffs in support of the action, " was, by consent of counsel, per- mitted to go to the jury, saving all exceptions to its competence and admissibility, which the counsel for the defendant reserved the right to insist in claiming the instructions of the court to the jury on the whole case." The plaintiffs offered in evidence a promissory note signed Wood and" Ebqrt, and purporting to be endorsed in blank by Peter Mills, Alexander Adair, and Horace Reed, as successive endorsers, which note, with the endorsements thereon, is as follows, to wit : " Chilicothe, 20th of July, 1819. Three thousand six hundred dollars. Sixty days after date I promise to pay to Peter Mills, or order, at the office of discount and deposit of the Bank of the United States, at Chilicothe, three thousand six hundred dollars, for value received. Wood and Ebert." Endorsed, " Pay to A. Adair or order. Peter Mills." " Pay to Horace Reed or order. A. Adair." " Pay to the president, directors and company of the Bank of the United States, or order. Horace Reed." On the upper right-hand corner of the note is abo endorsed, " 3185. Wood *and Ebert, three thousand six hundred dollars, September 18 r#oiyc — 21." It was proven, that this note had been sent to the office l- at Chilicothe to renew a note which had been five or six times previ- ously renewed by the same parties. It was proven by the deposition of Levin Belt, Esquire, mayor of the town of Chilicothe, that, on the 22d day of September, 1819, immediately after the commencement of the hours of business, he duly presented the said note at the said office of discount and deposit, and there demanded payment of the said note, but there was no person there ready or willing to pay the same, and the said note was not paid, in consequence of which, the said deponent immediately protested the said note for the non-payment and dishonour thereof, and immediately thereafter prepared a notice for each of the endorsers respectively, and immediatelyon the same daydepositedoneof said notices in the post-office, directed to Peter Mills, at Zanesville, (his place of residence,) of which notice the following is a copy: "Chili- cothe, 22d of September, 1819. Sir, you will hereby take notice, that a note drawn by Wood and Ebert, dated 20th day of September, 1819, for three thousand six hundred dollars, payable to you, or order, in sixty days, at the office of discount and deposit of the Bank of the United States at Chilicothe, and on which you are endorser, has been protested for non-payment, and the holders thereof look to you. 309 375 SUPREME COURT. [Mills V. The Bank of the United States.] Yours, respectfully, Levin Belt, mayor of Chilicothe." (Peter Mills, Esquire.) It was further proven by the plaintiff's, that it had been the custom of the banks in Chilicothe, for a long time previously to the establishment of a branch in tha*. place, to make demand of promissory notes, and bills of exchange, on the day after the last day of grace, (that is, on the sixty-fourth day,) that the branch bank, on its establish- ment at Chilicothe, adopted that custom, and that such had been the uniform usage in the several banks in that place ever since. No evi- dence was given of the handwriting of either of the endorsers. The court charged the jury, first, that the notice being sufficient to put the defendant upon inquiry, was good, in point of form, to charge him, al- though it did not name the person who was holder of the said note, nor state that a demand had been made at the bank when the note was due. 2. That if the jury find that there was no other note payable in the office at Chilicothe, drawn by Wood and Ebert, and endorsed by de- fendant, except the note in controversy, the mistake in the date of the note made by the notary in the notice given to that defendant, does not impair the liability of the said defendant, and the plaintiffs have a right to recover. 3. That should the jury find that the usage of banks, and of the office of discount and deposit in Chilicothe, was to make demand of payment, and to protest and give notice, on the sixty-fourth day, such demand and notice are sufficient. *^761 *'rhe counsel on the part of the defendant, prayed the court to J instruct the jury, "that before the common principles of the law relating to the demand and notice necessary to charge the endorser, can be varied by a usage and custom of the plaintiffs, the jury must be satisfied that the defendant had personal knowledge of the usage or custom at the time he endorsed the note ; and, also, that before the plaintiffs can recover as the holder and endorser of a promissory note, they must prove their title to the proceeds by evidence of the endorse- ments on the note," which instructions were refused by the court. Upon this posture of the case, no questions arise for determination here, except such as grow out of the charge of the court or the instruc- tions refused on the prayer of the defendant's (Mills's) counsel. Whe- ther the evidence was, in other respects, sufficient to establish the joint promise stated in the declaration, or the joint consideration of money lent, are matters not submitted to us upon the record, and were proper for argument to the jury. The first point is, whether the notice sent to the defendant at Chili- cothe, was sufficient to charge him as endorser. The court was of opinion, that it was sufficient, if there was no other note payable in the office at Chilicothe, drawn by Wood and Ebert, and endorsed by the defendant. It is contended that this opinion is erroneous, because the notice was fatally defective, by reason of its not stating who was the holder, bj reason of its misdescription of the date of the note, and by reason of its not stating that a demand had been made at the bank when the note was due. The first objection proceeds upon a doctrine which is not admitted to be correct ; and no authority is produced to support if. No form of notice to an endorser has been prescribed by law. The whole object of it is to inform the party to whom it is sent, that payment has been refused by the maker ; that he is considered liable ; and that pay- 310 FEBRUARY TERM, 1826. 376 [Mills II. The Bank of the United States.] ment is expected of him. It is of no consequence to the endorser who is the holder, as he is equally bound by the notice, whomsoever he may be ; and it is time enough for him to ascertain the true title of the holder, when he is called upon for payment. The objection of misdescription may be disposed of in a few words. It cannot be for a moment maintained, that every variance, however immaterial, is fatal to the notice. It must be such a variance as con- veys no sufficient knowledge to the party of the particular note ^hich has been dishonoured. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance cannot be material, either to guard his rights, or avoid his responsibility. In the present case, the misdescription was merely in the date. The sum, the par- ties, *the time and place of payment, and the endorsement, were r#q77 truly and accurately described. The error, too, was apparent L <*' ' on the face of the notice. The party was informed that, on the 22d of September, a note endorsed by him, payable in sixty days, was pro- tested for non-payment; and yet the note itself was stated to be dated on the 20th of the same month, and, of course, only two days before. Under these circumstances, the court laid down a rule most favourable to the defendant. It directed the jury to find the notice good, if there was no other note payable in the office at Chilicothe, drawn by Wood and Ebert, and endorsed by the defendant. If there was no other note, how could the mistake of date possibly mislead the defendant ? If he had endorsed but one note for Wood and Ebert, how could the notice fail to be full and unexceptionable in fact ? The last objection to the notice is, that it does not state that payment was demanded at the bank when the note became due. It is certainly not necessary that the notice should contain such a formal allegation. It is sufficient that it states the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. Whether, the de- mand was duly and regularly made, is matter of evidence to be estab- lished at the trial. If it be not legally made, no averment, however accurate, will help the case ; and a statement of non-payment and no- tice is, by necessary implication, an assertion of right by the holder, founded upbn his having complied with the requisitions of law against the endorser. In point of fact, in commercial cities, the general, if not universal^ practice, is, not to state in the notice the mode or place of , demand, but the mere naked non-payment. Upon the point, then, of notice, we think there is no error in the opinion of the circuit court. Another question is, whether the usage and custom of the bank not to make demand of payment until the fourth day of grace bound the defendant, unless he had personal knowledge of that usage and custom. There is no doubt that, according to the general rules of law, demand of payment ought to be made on the third day, and that it is too late if made on the fourth day of grace. But it has been decided by this court, upon full consideration and argument, in the case of Renner v. The Bank of Columbia, 9 Wheat. Rep. 582, 5 Cond. Rep., that where a note is made for the purpose of being negotiated at a bank, whose custom, known to the parties, it is to demand payment and give notice on the fourth day of grace, that custom forms a part of the law of such contract, at least so far as to bind their rights. In the present case, 311 377 SUPREME COURT. [Mills V. The Bank of the United States.] the court is called upon to take one step farther ; and, upon the princi- **?7S1 P'^^ ^^''^ reasoning of the former case, it has come *to the con- J elusion that, when a note is made payable or negotiable at a bank, whose invariable usage it is to demand payment and give notice on the fourth day of grace, the parties are bound by that usage, whe- ther they have a personal knowledge of it or not. In the case of such a note, the parties are presumed by implication to agree to be governed by the usage of the bank at which they have chosen to make the secu- rity itself negotiable. Another question propounded by the defendant is, whether the plain- tiffs were entitled to recover without establishing their title to the note as holders, by proof of the endorsements. There is no doubt that, by the general rule of law, such proof is indispensable on the part of the plaintiffs, unless it is waived by the other side. But in all such cases the defendant may waive a rule introduced for his benefit ; and such waiver may be implied from circumstances, as well as expressly given. It is in this view that the rule of the circuit court of Ohio, of 1819, which has been referred to at the bar, deserves consideration. That rule declares " that hereafter, in any actions brought upon bond, bill, or note, it shall not be necessary for the plaintiffs on trial to prove the execution of the bond, bill, or note, unless the defendant shall have filed with his plea an affidavit that such bond, bill, or note, was not executed by him." We think the present case falls completely within the purview of this rule. Its object was to prevent unnecessary ex- pense and useless delays upon objections at trials, which were frivolous ,and unconnected with the merits. If the rule attempted to interfere with or control the rules of evidence, it certainly could not be sup- ported. But it attempts no such thing. It does not deny to the party the right to demand proof of the execution or endorsement of the note at the trial ; but it requires him, in effect, to give notice, by affidavit accompanying the plea, that he means to contest that fact under the issue. If the party gives no such notice, and files no such affidavit, it is on his own part a waiver of the right to contest the fact, or rather an admission that he does not mean to contest it. We see no hardship in such a rule. It subserves the purposes of justice, and prevents the accumulation of costs. It follows out, in an exemplary manner, that injunction of the judiciary act of the 2d of March, 1793, ch. 22, which requires the courts of the United States " to regulate the practice thereof, as shall be fit and necessary for the advancement of justice, and especially, to that end, to prevent delays in proceedings." "As no afladavit accompanied the plea of the defendant in the present case, he had no right to insist upon the proof of the endorsements. Another objection now urged against the judgment is, that the count demands three thousand six hundred dollars only, and the jury gave „ Q, *damages amounting to four thousand six hundred and forty- '' J one dollars. But there is no error in this proceeding, since the ad damnum is for a larger sum. In all cases where interest, not stipu- lated for by the terms of the contract, is given by way of damages, the sum demanded in the declaration is less than the sum for which judg- ment is rendered. The plaintiffs may not recover more, as principal, than the sum demanded as such in the declaration ; but the jury have a right to add interest, by way of damages, for the delay. 312 FEBRUARY TERM, 1826. 379 [Mills V. The Bank of the United States.] Some other objections have been suggested at the bar, such as, that the jury had no right, without evidence, to presume that there was no other note of Wood and Ebert, in order to help the misdescription ; and that the case proved was of several liabilities of the defendants, which would not support a declaration on a joint contract. These questions have been fully argued by counsel, but are not presented by^ the record in such a shape as to enable the court to take cognisance of them. Upon the whole, it is the opinion of the court, that the judgment ought to be affirmed, with costs. Promissory notes and bills of exchange. Notice of non-pay ment. See notes, 2 Com]. Hep. 66. The decisions of the supreme court on the subject of demand and notice to the parties to bills of exchange and promissory notes, since the reports of Mr. Wheaton, have been the following : — By failing to demand payment of a bill held for collection, the bank would make the bill its own, and would become liable to its real owner for the amount. Bank of Washington v. Triplet and Neal, 1 Peters, 31. The allowance of days of grace for the payment of a bill of exchange, or note, is now univer- sally understood to enter into every bill or note of a mercantile character; and so, to form a part of the contract, that the bill does not become due until the last day of grace. Ibid, It is the usage of the Bank of Washington, and of other banks in the district of Columbia, to demand payment of a bill on the day after the last day of grace ; and this usage has been sanctioned by the decisions of this court. This usage is equally binding on parties who were not acquainted with its existence, but who have resorted to the bank governed by such usage, to make the bill negotiable. Ibid. The usage of the place on which a bill is drawn, or where payment is demanded, uniformly regulates the number of days of grace which must be allowed. Und. The failure of a bank holding a bill payable after date for collection, to give notice to the drawer, that the drawee was not found at home, when called upon to accept the bill, is not such negligence as discharges the drawer from his liability. Ibid. A bill of exchange, payable after date, need not be presented for acceptance before the day of payment ; but, if presented, and acceptance be refused, it is dishonoured, and notice must be given. The absence from his home, of the drawee of a bill payable after date, when the holder of a bill, or his agent, calls with it for acceptance, is not a refusal to accept ; but such absence, when the bill is due, is a refusal to pay, and authorizes a protest. Ibid. In an action against the endorser of a promissory note made " negotiable in the Bank of the Metropolis," the declaration averred a demand of payment of the same at that bank. *No i-j. qq^j other notice of the non-payment of the note was sent to the endorser but that left for L "^" him at the Bank of the Metropolis ; and it was proved that there was an agreement by parol with the endorser as to other notes discounted previously by the bank for his accommodation, that payment and demand of payment should be made at the hank. Held to be sufficient. Brent's Executors v. The Bank of the Metropolis, 1 Peters, 89. The endorser of such a note is himself bound by such a contract and the known usage of the bank. Ibid. A promissory note was made at Georgetown, payable at the Bank of Columbia in that town, the defendant, the endorser of the note, living in the county of Alexandria, within the district of Columbia, and having what was alleged to be a place of business in the city of Washington; and the notice of the non-payment of the note, enclosed in a letter and superscribed with his name, was put into the post-office at Georgetown, addressed to him at that place. Held, that this notice was sufficient. Bank of Columbia v. Lawrence, 1 Peters, 582. In cases where the party entitled to notice resides in the country, unless notice sent by the mail is sufficient, a special messenger must be employed for the purpose of sending it, but this case is not one which required such a duty. Ibid. If the defendant had a place of business in the city of Washington, and the notice served there would be good, yet it by no means follows, that service at his place of residence in an- other place, would not be equally good. Parties may be, and frequently are so situated, tuat notice may well be given at either of several places. Ibid. That is not properly a place of business, in the commercial understanding of the terms, which has no public notoriety as such, no open or public business carried on at it by the party, Vol. VI.— 40 2 B 313 380 SUPREME COURT. [Mills V. The Bank of the United States.] but only occasional employment by him there, two or three times a week, in a house occupied by another person, the party only engaged in settling up his old business. Ibid. The general rule is, that the party whose duty it is to give notice of the dishonour of a bill or note, is bound to use due diligence in communicating the same. But it is not required of him to see that the notice is brought home to the party. He may employ the usual and ordi- nary modes of conveyance ; and whether the notice reaches the party or not, the holder has done all that the law requires of him. Ibid. It seems to be well settled, that when the facts are ascertained and undisputed, what shall constitute due diligence is a question of law. Ibid. The rules relative to diligence ought to be reasonable, and founded in general convenience, and with a view to clog, as little as possible, consistently with the safety of the parties, the circulation of paper of this description. Ibid. When a person has a dwelling-house and a counting-room in the same city or town, a notice se(it to either place is suiGcient ; if parties live in different post-towns, notice through the post- offlce is sufficient. Notice, to a party living at another place than the holder, sent by mail to the nearest post-office, is good under common circumstances, and in such cases where notice is sent by mail, it is distance alone, or the usual course of receiving letters, which must determine the sufficiency of the notice. Ibid. Same countenance has lately been given in Bngland, to the practice of sending a notice by , a special messenger in extraordinary cases, by allowing the holder to recover of the endorser the expenses of serving the notice in this manner. The holder is not bound to use the mail for the purpose of sending notice. He may employ a special messenger if he pleases, but it has not been decided that he must. To compel the holder to the expense of a special messen- ger, would be unreasonable. Ibid. Modern decisions go to establish that if a note be at a place where it is payable on the day it falls due, the onus of proving payment falls upon the parties who are liable to pay it. Ful- krton v. The Bank of the United States, 1 Peters, 616. Bills of exchange, payable at a given time after date, need not be presented for acceptance *Qfi1 1 *''' ^" ' ""^ payment may at once be demanded at their maturity. Townaley v. Sum- ^^^i rail, 2 Peters, 178. The notary public, after the note became due, called at the house of the endorser, who resided in the city of Cincinnati, which he found shut up, and the door locked ; and on inquiry of the nearest resident, he was informed that the endorser and family had left town on a visit ; whether for a day, week, or month, be did not know nor did he inquire. He made use of no further diligence to ascertain where the endorser had gone, or whether he had left any person in town to attend to his business. lie left a notice at the house of a person adjoining, with a request to hand it to the endorser when he should return : held, that this was sufficient diligence on the part of the holders of the note, to charge the endorser. Williams v. The Bank of the United States, 2 Peters, 100. The general rule of law applicable to this subject, has long been settled ; that to enable the holder of a bill of exchange or promissory note, to charge the endorser, it is incumbent on him to prove that timely notice of the dishonour of the bill, or of the non-payment of the note, was given to the endorser ; or if this could not be done, he must excuse the omission by showing that due diligence had been used to give such notice. Ibid. If the parties reside in the same city or town, the endorser must be personally notified of the dishonour of the bill or note ; either verbally, or in writing ; or a written notice must be left at his dwelling-house or place of business. Either mode is sufficient, but one or other must be observed, unless it is prevented by the act of the party entitled to the notice. Ibid. The holder of a bill or promissory note, in order to. entitle himself to call upon the drawer or endorser, must give notice of its dishonour to the parly whom he means to charge. But if, when the notice should be given, the party entitled to it should be absent from the stale, and has left no known agent to receive it ; if he abscond, or has no place of residence which reason- able diligence used by the holder can enable him to discover, the law dispenses with the neces- sity of giving regular notice. Ibid. AVhere the parties reside in the same city or town, the notice should be given at the dwell- ing-house, or place of business, and the duty of the holder does not require him to give the notice at any other place. Ibid. See also. The Bank of the United States v. Corcoran, 2 Peters, 121. If notice of the non-payment of a note, although left at an improper place, was nevertheless, in point of fact, received in due time by the endorser, and so proved, or could from the evidence .n the cause be properly presumed by the jury ; it is sufficient in point of law to charge the endorser. Ibid. An action was brought by the Union Bank of Georgetown against George B. Magruder as 314 FEBRUARY TERM, 1826. 381 [Miller's Heirs v. M'Intire. — Carnochan v. Christie.] onilorser of a promissory note drawn by George Magruder. The maker of the note died before it became payable, and letters of administration to his estate were taken out by the endorser. No notice of the non-payment of the note was given to the endorser, or any demand of pay- ment made until the institution of this suit. Held, that the endorser was discharged, and his having become the administrator of the drawer does not relieve the holder from the obligation to demand payment of the note, and to give notice thereof to the endorser. The general rule, that payment must be demanded from the maker of a note, and notice of non-payment for- warded to the endorser within due time, in order to render him liable, is so firmly settled that no authority need be cited to support it. Due diligence to obtain payment from the maker is a condition precedent, on which the liability of the endorser depends. Magruder v. T/ie Bank of Georgetown, S Peters, 90. Where the notary public called at the boarding-house where the endorser lodged, and inquired of a fellow-boarder for him, and, being informed he was not within, lefl with the fellow- boarder notice directed to him of the non-payment of a note of which he was endorser, request- ing him to deliver it ; it was held that the notice was sufficient to make *the endorser rj.QQO liable for the payment of the bill. Bank of the United States v. Hatch, 6 Peters, 250. L **°'* Whether certain facts in reference to an alleged notice to the endorser, and demand of pay- ment of a promissory note by the drawer, amounted to a waiver of the objection to the want of demand and notice, is a question of fact, and not matter of law, for the consideration of the jury. Union Bank v. Magruder, 7 Peters, 287. Miller's Heirs v. M'Intire and others. 1 1 Wheaton's Reports, 44X. QU.^RE, Whether the compact of 1789, between Virginia and Ken- tucky, restrained the legislature of Kentucky from prolonging the time for surveying one entry to the prejudice of another? By the construction of the a.ct of Kentucky of 1797, granting further time for making surveys, with a proviso, allowing to infants, &c., three years after their several disabilities are removed to complete surveys on their entries ; if any one or more of the joint owners be under the disability of infancy, (fee, it brings the entry within the saving of the proviso, as to all of the other owners. Carnochan and Mitchel v. Christie and another 1 1 Wheaton's Reports, 446. An award must decide the whole matter submitted to the arbitrators; it must not extend to any matter not comprehended in the submission ; and it mast be certain, final, and con- clusive of the whole matter referred. [See note at the end of the case.] Where the arbitrators determined that the plaintiffs should be entitled to a credit of a certain sum on account of sales of land to the defendant, provided "they shall grant, 'or ra^qaq cause to be granted, to the said W, C. (the defendant,) a clear, unincumbered, and L "^" satisfactory title" to the lands, without limiling any time within which the title should be made : held, that the award was void, as not being final and conclusive. 315 383 SUPREME COURT. [Carnochan v. Christie.] A court of equity either enforces an award as it is made, or sets it aside if in any respect defective; but it is contrary to its practice to confirm the award so far as it extends, and to supply omissions by decree of the court. Where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by the defendant. MR. WEBSTER and Mr. Berrien, cited, for the appellants : 2 Madd. Ch. 329. 2 At. 133. 1 Ball and Beatty, 217. 2 Cox, 78. As to the manner in which a court of equity acts upon an award, either by con- firming it in toto or rejecting it, 1 Bro. Ch. 389. 3 Bro. Ch. 163. 1 Ves. Jun. 365. 2 Ves. Jun. 22. 4 Bro. Ch. 117, 536. As to the necessity of the award extending to all the matters of reference,! East's Rep. 81. As to the uncertainty and inconclusiveness of the award, 7 Term Rep. 69. Mr. Emmett and Mr. D. B. Ogden, for the respondents : to show that an award might be good in part, and void as to the residue, they cited 5 Wheat. Rep. 394. 4 Cond. Rep. 702. 3 Dessauss. 11. 14 Johns. Rep. 36. Kyd on Awards, 243, 261 ; and the cases there collected. Mr. Chief Justice Marshall delivered the opinion of the court. Carnochan and Mitchel, the plaintiffs,' were merchants in Georgia, who had extensive commercial transactions with the defendant, William Christie, a merchant of Liverpool, in the course of which the former became indebted to the latter to a large amount. In 1819, John Carno- chan, one of the firm of C. and M., visited England, in the expectation of selling immense tracts of land he had purchased in Florida, and, during his residence in that country, his partner, Peter Mitchel, relying, probably, on the sale of lands, continued to draw heavily on the defend- ant, W. C, without making correspondent remittances. Carnochan being unable to sell his lands, and thus to place funds in the hands of Christie, these bills produced great embarrassments, and frequent com- munications between the parties, in the course of which Carnochan pressed Christie most earnestly to proceed with his acceptances, and promised to secure him by the pledge of his Florida lands, and property in Georgia. At length deeds of these lands, and other property, were executed, and the accounts settled between the parties. An account was stated, and signed by them, showing a balance of forty-three thou- sand two hundred and ninety-three pounds, six shillings and four pence sterling, due to Christie, for which sum Carnochan gave the promissory note of C. and M., dated . ^„„ .- *Soon after the execution of these deeds, Carnochan returned to -I Georgia,and considerable payments were made. But the debt still remaining considerable, the agent of Christie caused the deeds to be recorded, and apprehensions were entertained that he would proceed to sell the property. In June, 1820, Carnochan and Mitchel filed their bill in the circuit court of the United States for the district of Georgia, alleging that the account was unfairly settled, to the very great injury of the plaintiffs ; that it contains many erroneous charges, and omits to give credits to which the plaintiffs are entitled, and that Carnochan was induced to sign it, and to give the note for the amount, in consequence of his situation, which placed him in the power of the defendant. That the deeds also were executed under duress, and consequent imposition. The bill pravs that the account may be resettled, that the deeds may 316 ' FEBRUARY TERM, 1826. 384 [Oarnochan v. Christie.] be cancelled, and the defendant enjoined from proceeding under them. The injunction was awarded. The defendant, Christie, filed his answer, denying all the material allegations of the bill. Numerous exhibits were filed, and several depositions taken. In December, 1821, the parties agreed to refer the case to arbiters, and the following submission was entered on the record : "Carnochan and Mitchel v. William Christie and William Jenner, in equity. We agree to the reference. The arbitrators to determine all matters in controversy as exhibited in the pleadings, with the under- standing that the stated account is not to be opened further than to permit the complainants to establish by proof the errors in the same, as alleged in their bill and exceptions; the items which compose the alleged error of four thousand pounds, to be distinctly stated and speci- fied by the complainants within twenty days from this date. The defendant, William Christie, (if he desire it,) to have one hundred and twenty days to procure documents or vouchers to answer the said items, upon giving the complainants notice within ten days after receiving such specification. The parties to proceed in the arbitration upon ten days' notice after the expiration of the time allowed the complainants to exhibit their specification above mentioned. This submission to be made an order of court. The arbitrators to make their award within one hundred and twenty days, unless prevented by the requirement of time by the said William Christie as aforesaid, from this date, and return the same to the next term of this court ; which award, when so made, shall be final and conclusive between the parties, subject to those ex- ceptions which arise upon awards, or decisions of arbitrators. Claims to commissions mutually abandoned, and the amount decreed by the arbitrators to be paid in two instalments, at six and twelve months from *the date of the decree, and sufficient security for the fulfilment r#oor of the award be given by Carnochan and Mitchel to William ^ Christie. The arbitrators to have the power of examining witnesses upon oath, and calling for documents which they may deem necessary ; but the said William Christie shall be excused from producing any such document, if he will depose that the same is not in his possession on this side of the Atlantic. The arbitrator under this submission, chosen and selected by the complainants, is William Gaston, Esquire, and the arbitrator chosen and selected by the defendant, William Christie, is Samuel Nicholas, Esquire ; the sa\d arbitrators, in case of disagree- ment, to name an umpire. The arbitrators to decide whether William Christie is entitled to a distinct and separate interest in the Florida lands, as he alleges, or to an undivided interest in the proceeds of the same, as alleged by Carnochan and Mitchel. If they decide in favour of complainants upon this point, then the whole property shall be placed in the hands of trustees mutually appointed by the parties, with authority to sell the same, or such part thereof as may be necessary, and appropriate the proceeds to William Christie on his own account, and to the credit of the balance which shall be found due to him, until the same is extinguished, in the proportion of the respective interests of William Christie, and Carnochan and Mitchel. If they decide in , favour of the defendant upon this point, then it is agreed, that an im- mediate partition of the property shall be made, and the part allotted ^ 2b2 317 385 SUPREME COURT. [Caroochan ». Christie.] to Carnochan and Mitchel shall be placed in the hands of such trustees, and the same, or such parts as may be necessary, be sold, and the pro- ceeds appropriated in like manner to the payment of the balance found due to William Christie by Carnochan and Mitchel, until the same is paid. That, as soon as that balance is paid, the deeds and other in- cumbrances held by said William Christie, with the settled account and note of Carnochan and Mitchel, are to be delivered up. " That it shall be referred to the said arbitrators to determine whe-, ther the payment of the balance should be made in Engletrad at par, or here." " On the 14th of February, 1832, the following award was returned, and filed in court. " In the sixth circuit court of the United States, district of Georgia. C. and M. v. C. and J., in equity. " Arbitration. The undersigned arbitrators, chosen and selected by the above-named parties, as will more fully appear by reference to the submission calling them to perform this duty, under date of the 38th of December, 1821, beg leave to report and award to the following result, after the most patient hearing of the parties aforesaid, and a *38fil *^^''^f"' examination of the books, papers, letters, and vouchers, ■I which have been submitted to their inspection, and, also, after giving all matters and things in controversy the most mature delibera- tion. " 1st. That William Christie place to the credit side of his account with the late firm of Carnochan and Mitchel, the sum of eighteen thou- sand eight hundred and forty-six dollars and fifty-five cents, as an amount paid by said Carnochan and Mitchel, through Mitchel, Nephew and Co., of Havana, to Messrs. John and James Inerarity, for sixteen shares, or eighty thousand acres of land, bought by Carnochan and Mitchel, by order, and for account of, William Christie, of said John and James Inerarity, lying in the territory of West Florida ; that the said Carnochan and Mitchel be also credited with an accumulating in- terest on said amount from the dates of payment, which precise periods will more fully appear by reference to an affidavit made by Colin Mitchel, at Havana, on the 19th day of October, 1821 ; said interest to be calculated at and after the rate of five per centum per annum ; pro- vided, nevertheless, that the said John Carnochan and Peter Mitchel shall grant, or cause to be granted, unto the said William Christie, a clear, unincumbered, and satisfactory title to the said sixteen shares, or eighty thousand acres of land lying in West Florida as aforesaid. "3d. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, the sum of ten thousand pounds sterling, or forty-four thousand four hundred and forty-four dollars and forty-four cents, being in payment to Carnochan and Mitchel for thirty shares, or one hundred and fifty thousand acres of land, lying in the territory as aforesaid of West Florida ; the said sum of forty-four thousand four hundred and forty-four dollars and forty- four cents, to draw an accumulating interest to the credit of the said Carnochan and Mitchel, at and after the rate of five per centum per annum. The period when said interest shall commence to be calcu- lated, shall be from the day of the date of the title, which title is 'eferred to in the provision next following : provided, nevertheless, that 318 FEBRUARY TERM, 1826. 386 [Carnochan v, Christie.] the said John Carnochan and Peter Mitchel shall grant, or cause to be granted, unto the said William Christie, a clear, unincumbered, and satisfactory title of the said thirty shares, or one hundred and fifty thousand acres of land, lying in the territory of West Florida as afore- said. " 3d. William Christie to place to the credit side of his account, with the late firm of Carnochan and Mitchel, the one-half amount of the sterling cost of a case of merchandise, marked AP. (56), number fifty- six, shipped to A. H. Putnam and Co., in the year eighteen hundred and sixteen, amounting to the sum of ninety-one pounds, eight shil- lings *and seven pence, as the whole cost ; one-half to be thus 1-^007 credited is forty-five pounds, fourteen shillings, and three pence ^ ''°' halfpenny, or two hundred and three dollars sixteen cents, without placing any interest whatever to the credit of Carnochan and Mitchel on this amount, no interest considered as of right accruing on this credit. "4th. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, one-third of the net proceeds of twenty-one bales of cotton, the whole amount of net proceeds of twenty-five bales of cotton, and also the whole amount of net proceeds of thirty-nine bales of cotton, with an accumulating interest from the date when in funds from the sale of same, at and after the rate of five per centum per annum : provided, nevertheless, that the said John Carnochan and Peter Mitchel shall grant to said William Christie the bonds of Bainbridges and Brown, of London, indemnifying the said William Christie against any future claimants whatever, for the net proceeds of said twenty-five bales of cotton ; and also against all such unascertained charges as now exist, or may hereafter exist, against the thirty-nine bales of cotton as aforesaid. " 5th. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, one-half the amount of three hundred and fifty pounds sterling paid for deeds, &c., one-half to be borne by the said William Christie, and the other half by Carnochan and Mitchel, being seven hundred and seventy-seven dollars and seventy-seven cents, with interest at five per centum per annum as aforesaid, from the period of the debit in the books of said William Christie. " 6th. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, a discount paid by Carnochan and Mitchel on Virginia bank-notes received from John Gruve, on ac- count of William Christie, amounting to twenty-two hundred and ten dollars, at two and a half per cent., is fifty-five dollars and twenty-five cents, with interest at five per centum per annum from the date of receipt of said money. " 7th. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, the sum of sixty dollars and seventy-five cents, for attaching money in the hands of R. Harvey, of Augusta, with interest of five per centum per annum from the date of such charge in the books of Carnochan and Mitchel. " 8th. William Christie to place to the credit side of his account with the late firm of Carnochan and Mitchel, two-thirds amount of the ex- penses on loading the. ships Ocean and Aberdeen, the whole amounting 387 SUPREME COURT. [Carnochan v. Christie.] to two hundred and forty-three dollars and seventy-five cents; two- ^oQc-i *thirds of which, to be credited as aforesaid, is one hundred and J sixty-two dollars and fifty cents, with interest as aforesaid, at the rate of five per centum per annum, from the date of such charge in the books of Carnochan and Mitchel. " 9th. Carnochan and Mitchel to place to the credit side jof their ac- count with William Christie, the sum of four pounds sterling, or seven- teen dollars and seventy cents, paid by the latter to captain Munro, with interest as aforesaid at the rate of five per centum per annum from the date of such advance, as entered in the books of William Christie. " 10th. Carnochan and Mitchel are to account to William Christie for a libranza, amounting to three hundred dollars, transmitted to Colin Mitchel, of Havana, for collection ; also for a piece of red cloth, and some thread, remaining on hand unsold. " 11th. The undersigned distinctly award and determine, that the amounts expressed in the first, second, and fourth preceding items of this instrument of award, cannot be considered as sums to the credit side of William Christie's account with Carnochan and Mitchel, until all the conditions annexed to those respective items are fulfilled. The amounts expressed in items third, fifth, sixth, seventh, and eighth, are without any condition, and are, of course, to be immediately placed to the credit of Carnochan and Mitchel, in the account of William Christie. " 13th. The undersigned arbitrators award, and hereby decide, that the interest of William Christie in the Florida lands, meaning thereby the eighty thousand acres, and one hundred and fifty thousand acres, mentioned in items first and second of this instrument of award, is an undivided interest. • " 13th. The undersigned arbitrators award, and hereby decide, that William Christie is entitled to debit and credit Carnochan and Mitchel, in account, at the rate of five per centum per annum interest annually, as same as heretofore, or shall hereafter become due, so that each an- nual accumulation of interest sliall become principal, and be considered as same. " 14th. The arbitrators feel themselves unqualified to decide upon a bill of charges exhibited by William Christie as his expenses in prose- cuting this suit, together with other charges that have been incurred, incidental to the same, both in England and this country, and would beg leave, with the consent of both parties, to refer the same to his honour the judge, to decide on whom, in this controversy, such expenses can most properly fall. " 15th. The arbitrators do hereby award and decide, that any balance that is now due, or shall be hereafter paid by Carnochan and -^ *Mitchel to William Christie, shall be considered as money due J and payable in England at par. If, therefore, the sum is paid by Carnochan and Mitchel to William Christie in the United States, it must be in British sterling, at the current rate of exchange between the two countries. " 16th. Whereas William Christie has this day exhibited to the un- dersigned arbitrators his entire account current with the late firm of Carnochan and Mitchel, with interest calculated thereon up to the six- 320 FEBRUARY TERM, 1826. 389 [Carnochan v, Christie.] teenlh instant : we have duly examined the same, and believe it to be a just and faithful account, showing an amount of thirty thousand four hundred and eighty- three pounds, one , shilling and two pence, or one hundred and thirty-five thousand, four hundred and eighty dollars and twenty-five cents, due him from Carnochan and Mitchel, and which sum we do hereby award unto the said William Christie as the basis upon which a final settlement of accounts shall take place between him and the said Carnochan and Mitchel. It is to be distinctly understood by both parties in this controversy, that this amount of (thirty thousand four hundred and eighty-three pounds, one shilling, two pence sterling, or) one hundred and thirty-five thousand four hundred and eighty dol- lars, and twenty-five cents, as now awarded to William Christie, is subject to all such deductions as are mentioned in the preceding items of this instrument of award ; namely, the unconditional items to be immediately deducted ; the conditional items to be deducted as the provisions of those conditions shall be removed by Carnochan and Mitchel, as will more fully appear is intended by the arbitrators, by reference to the eleventh item of this instrument of award ; provided, nevertheless, that such amounts as are awarded to the credit of Carno- chan and Mitchel in the preceding items of this instrument of award, as are hereby credited in the account current, as aforesaid, of William Christie, shall be considered always as settled by being placed in said account to the credit of Carnochan and Mitchel, and, of course, cannot be deducted again, as might be inferred, without this explanation, under the name of a provision to this iteni the sixteenth; " 17th. This item the arbitrators beg leave to introduce as explana- tory, rather than having any specific award or decision thereon, affecting the parties in controversy, by observing, that the actual amount that it may be desirable to ascertain may be due from Carnochan and Mitchel to William Christie, at any future day, arising from the account now referred to of William Christie, and also the deductions to be made from the same, growing out of this instrument of award, may be known by ascertaining whether Carnochan and Mitchel have removed the conditions annexed to items first, second, and fourth ; and, if found to be ♦removed, then the whole amount now awarded in their r^ooQ favour (under conditions) will be placed to their credit in the '- account of William Christie ; which, on supposition of being removed and placed at their credit at this period of time, would leave a balance due from Carnochan and Mitchel to William Christie, of a sum within the amount of seventy thousand dollars. Savannah, February 13th, 1822. Sam. Nicholas, Wm. Gaston." Exceptions were taken to this award ; and, on the 23d of December, 1822, an interlocutory decree was pronounced by the circuit court, aflSrming the award, and referring the cause to the register, " to report the precise amount due the defendants, absolutely, according to the principles established by the award ; also, the amount due hypotheti- cally, should the complainants fail to fulfil the conditions imposed by the award ; in which undertaking he shall be at liberty to invoke the aid of the arbitrators, or either of them. He must also report to the court the titles proposed to be given by the ciimplainants to the de- fendant Christie, for the several purchases of the Florida lands, should Vol. VI.— 41 321 390 SUPREME COURT. [Carnochan v. Christie.] any difficulty arise between the parties on tjiie legal sufficiency of the titles.'^ The court also directed the parties to join in a transfer of the Florida lands to trustees, for the purpose of raising the money due under the award, when instructed to do so under order of the court. The report of the register was made, showing the sum due according to the award, should a title be made to Christie for the Florida lands he had purchased ; and also the sum which would be due, should no such deeds be made. At the same term, on the return of this report, a final decree was pronounced, affirming the award, and affirming also the register's re- port; and directing the parties to join in a transfer of their whole interest in the Florida lands to trustees, " in trust to hold the same in pursuance of the terms of the said submission, and the award made thereon." The injunction was dissolved, and the bill dismissed. The plaintiffs appealed from this decree, and contend, that the award ought to be set aside, because, 1st. The arbitrators have not decided the whole matter that was submitted to them. 2d. They have decided and awarded what was not submitted. 3d. The award is uncertain. 1. In support of the exception founded on the failure of the arbitrators to decide on the whole matter submitted to them, it is alleged by the plaintiffs, that the duress under which the deeds of trust, executed in England, were obtained, constituted a very essential part of the con- troversy, on which the award is entirely silent. #^Qn *■'■'' '^ undoubtedly true, that this is a " matter in controversy -^ as exhibited in the pleadings," and would be submitted to the arbitrators by the general words of the first sentence, describing the extent of the submission, if it were not withdrawn from them in a sub- sequent part of the same instrument. But we think it is withdrawn. After directing that the arbitrators shall ascertain "the balance due on the account, the agreement of submission adds : " that as soon as that balance is paid, the deeds, and other encumbrances held by the said William Christie, with the settled account and note of Carnochan and Mitchel, are to be delivered up." This is, we think, a waiver of any objection to the manner in which those deeds were obtained, and an admission that they should remain In the hands of Christie as a security for the debt, until it should be discharged. 2. The second omission with which this award is charged, is the failure to decide on the claim of the plaintiffs to a credit for Christie's proportion of the expenses incurred in the settlement of the Florida lands. This, too, was undoubtedly a matter of controversy. But we think it has been decided. The arbitrators have allowed to the plaintiffs several credits claimed by them, but have not expressed their rejection of any item which may have been made and disallowed. Instead of introducing into the award the several items which may have been claimed and disallowed, they award a specific sum to the defendant, with a declaration that the several items enumerated in the preceding part of the award as creditors to which the plaintiffs are entitled, are 322 FEBRUARY TERM, 1826. 391 [Cainochan v, Christie.] to be reducted therefrom. This is, we think, a rejection of all credits not enumerated. 3. The failure to decide on the allegation made in the bill, and denied in the answer, that fifty thousand acres, part of the interest in the Florida land sold to the defendant, was a mere donation, made under expectations which were entirely disappointed. This also is, we think, decided in the award. The second article directs a credit of ten thousand pounds sterling to be given to C. and M., being in payment to them for thirty shares, or one hundred and fifty thousand' acres of land, lying in the territory of West Florida. This, we think, asserted the title of the said Christie to the whole quantity of land, and negatives the right of the plaintiffs to reclaim any part of it. The second objection to the award is, that the arbitrators have ex- ceeded their power, in requiring the plaintiffs to give a clear unencum- bered title to the Florida lands. The plaintiffs are not required to give a title. This is not a substantive and independent part of the award, directing them to do a particular *act, for the neglect of which they would be liable to damages, r.^joqn or for the enforcing of which an attachment might issue. This <- part of the award is not compulsory. If the plaintiffs choose to waive the credit for the purchase-money, they are left at liberty to do so, and to withhold the title, in which case the award affords the defendant no coercive means to compel a conveyance. But had this article of the award been peremptory, it is by no means clear that the arbitrators would have exceeded their power in making It. That power extends to all matters in controversy, as exhibited in the pleadings, unless it be restrained by other parts of the submission. The title which the defendant might rightfully demand was one of these matters. The plaintiffs contend in their bill, that the defendant was perfectly acquainted with the state of the title, and was bound to take it, such as it was ; and there are strong circumstances to support their pretensions, at least as far as respects the eighty thousand acres pur- chased from the Ineraritys. The defendant insists that they were bound to make him a clear title, and relies to prove this on a memorandum at the foot of a stated account, in these words: " Memorandum. From the balance due to me on this account as per contra, there is to be deducted, as agreed on between Messrs. Carnochan and Mitchel, and myself, in lieu of one hundred and fifty thousand acres, or thirty shares of their purchase of Apalachicola lands, held in trust for them by Mr. Colin Mitchel, on his and their executing to me a proper title for the same, the sum of ten thousand pounds." The memorandum proceeds in like manner to state, that on a title for the eighty thousand acres, there shall be deducted the sum of six thousand five hundred and eighty-three pounds eight shillings and six pence. The question, what was a proper title, was for a court to decide under all the circumstances of the contract, and was transferred to the arbitrators by the submission, unless it be withdrawn from them by a subsequent clause of that instrument. The plaintiffs contend, that it is withdrawn by the provision, that, if the arbitrators should decide that Christie was entitled to an undi- 323 392 SUPREME COURT. [Carnochan v. Christie.] vided interest in the proceeds of the Florida lands, then the whole property shall be placed in the hands of trustees, " with authority to sell the same, or such part thereof as may be necessary, and appro- priate the proceeds to William Christie on his own account, and to the credit of the balance which shall be found due to him, until the same is extinguished in the proportion of the respective interests of W. C. and C. and M." The twelfth article of the award decides, that the interest of W. C. in the Florida lands, is an undivided interest. The plaintiffs insist, *3931 *^^^^ ^^^ parties have themselves provided for the state of -I things produced by this decision. They have directed that all the lands shall be placed in the hands of trustees, to be sold by them so far as may be necessary for the payment of the debt due to Christie. They have agreed on what shall be done if the lands were held in com- mon, and that on which they have agreed is inconsistent with what the arbitrators have done. There is, undoubtedly, some confusion in this part of the submission, which renders the construction difficult. It directs, that the interest of Christie, as well as that of C. and M., shall be sold, and the proceeds applied to the individual credit of Christie, and to the credit of C. and M. on their debt to Christie, in proportion to their respective interests in the land. This may be readily done, should the lands be sufficient to discharge the debt. Should they be insufficient, and should the insuf- ficiency arise from want of title in C. and M., Christie gives the credit absolutely, although he had contended that the right of the plaintiffs to the credit depended on the validity of the title they sold. This consi- deration may enter into the construction of the submission, if the words be doubtful, but cannot control the arrangement of the parties if that be intelligible. We rather incline to the opinion, that as the whole property, including the interest of Christie, was to be placed in the hands of trustees to be sold on joint account, that the conveyance of a title to Christie could not be contemplated as a preliminary measure. But it is unnecessary to give any positive opinion on this point, because, we think, the award must be set aside because it is uncertain, and not final in a very material point. The arbitrators have determined that C. and M. are entitled to a credit of sixty-three thousand two hundred and ninety dollars and ninety-nine cents, on account of the- sales of lands to Christie, provided they "shall grant, or cause to be granted, to the said W. C, a clear, unencumbered, and satisfactory title," to the said lands. No time is limited by which, this title shall be made. The question, then, whether this credit is to be allowed, or disallowed, is left indefinitely open. Consequently, the award is not final. It does not settle the accounts between the parties. If it be said that the court may prescribe some time by which the title shall be made, the answer is-, that if the arbitrators could refer that question to the court, they have not done so. They have left it en- tirely open. But the award ought itself to settle finally and conclu- sively the whole matter referred to them. It is contrary to the principle of a general reference, that the court should take the award as far as it goes, and supply £1^11 omissions by its decree. The award ought to be 334 -' ■ ■ FEBRUARY TERM, 1826. 394 [United States v. Ortega.] *in itself a complete adjustment of the controversies submitted ^^^004 to the arbitrators. L This award, therefore, ought to be set aside, and the decree affirming it reversed, and the cause remanded to the circuit court. The case will, then, stand before that court as it did previous to the submission. The court may dissolve the injunction so far as it should be perfectly satisfied that the plaintiffs are indebted to the defendant ; and Christie may either avail himself of the deeds he has received, or file a cross bill praying the aid of the court. Award and arbitrament. See notes, 2 Cond. Rep. 464. See also the following cases : — There is a class of cases, upon awards, to be found in the boolcs, in which arbitrators have been held to more than ordinary strictness, in pursuing the terms of the submission, and in awarding upon the several distinct matters submitted, upon the ground of this submission being conditional, ita quod. But the rule is^to be understood, with this qualification ; that in order to impeach an award made in pursuance of a conditional submission, on the ground of part only of the matters in controversy having been decided, the party must distinctly show, that there were other points in difference, of which express notice was given to the arbitrators ; and that they neglected to determine them. Karthaus v, Ferrer et al., 1 Peters, 827. It is a settled rule in the construction of awards, that no intendment shall be indulged to over- turn an award, but every intendment shall be allowed to uphold it. Ibid. If a submission be of all actions real and personal, and the award be only of actions personal, the award is good ; for, it shall be presumed, no actions real were depending between the parties. Ibid. The United States v. Ortega. 11 Wheaton'a Reports, 467. An indictment under the crimes act of 1790, ch. 35, s. 37, for infracting the law of nations by offering violence to the person of a foreign minister, is not a case " affecting ambassadors, other public ministers and consuls," within the second section of the third article of the constitution of the United States. [See note at the end of the case.] Tae circuit courts have jurisdiction of such an offence under the eleventh section of the judi- ciary act of 1789, ch. 20. Qusere, Whether the jurisdiction of the supreme court is not only original, but exclusive •of the circuit court, in « cases affecting ambassadors, other public ministers and r^qqc consuls," within the true construction of the second section of the third article of L ''" the constitution. Mr. Justice Washington delivered the opinion of the court. The defendant, Juan Gualberto de Ortega, was indicted in the cir- cuit court of the United States for the eastern district of Pennsylvania, for infracting the law of nations by offering violence to the person of Hilario de Rivas y Salmon, the charge d'affaires of his catholic majesty the king of Spain in the United States, contrary to the law of nations, and to the act of the congress of the United States in such case pro- vided. The jury having found a verdict of guilty, the defendant moved in arrest of judgment, and assigned for cause, " that the circuit court has not jurisdiction of the matter charged in the indictment, inasmuch 2C 325 395 SUPREME COURT. [United States v. Ortega.] as it is a case affecting an ambassador or other public minister." Tlie opinions of the judges of that court upon this point being opposed, the cause comes before this court upon a certificate of such disagreement. The questions to which the point certified by the court below gives rise, are, first, whether this is a case affecting an ambassador or other public minister, within the meaning of the second section of the third article of the constitution of the United States. If it be, then the next question would be, whether the jurisdiction of the supreme court in such cases, is not only original, but exclusive of the circuit courts, under the true construction of the above section and article. The last question need not be decided in the present case, because the court is clearly of opinion, that this is not a case affecting a public minister, within the plain meaning of the constitution. It is that of a public prosecution, instituted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual. It is a case, then, which affects the United States, and the individual whom they seek to punish ; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution, or in the costs attending it. It is ordered to be certified to the circuit court for the eastern district of Pennsylvania, that that court has jurisdiction of the matter charged in the indictment, the case not being one which affects an ambassador or other public minister. Certificate accordingly. *^Qfi1 'Pi^'^S't ministers. o»DJ Where an outrage has been committed upon the dwelling-houso of a foreign minister, to constitute it an offence against the laws of nations, and the 27th section of the act of congress, of April 30th, 1790, ch, 36, it must be made to appear that the party knew the house on which the attack was made to be the domicil of the minister ; otherwise it is merely an offence against the municipal law. United States v. Hand, 2 Wash. C. C. K. 435, In an indictment for an assault and battery on a foreign minister, the first assault by the minister will excuse the defendant, as much as in an ordinary case. United States v, Liddel, 2 Wash. C. C. R. 205. An assault upon a foreign minister, not known as such to the aggressor, is not a violatioc of the laws of nations, under the act of congress. Ibid. 326 JANUARY TERM, 1827. Hon. JOHN MARSHALL, Chief Justice. Hon. BUSHROD WASHINGTON, Associate Justice. Hon. WHXIAM JOHNSON, Associate Justice. Hon. GABRIEL DUVALL, Associate Justice. Hon. JOSEPH STORY, Associate Justice. Hon. SMITH THOMPSON, Associate Justice. Hon. ROBERT TRIMBLE, Associate Justice, (a) William Wirt, Esq., Attorney-General. The Palmyra, Escurra, Master. 12 Wheaton's Reports, 1. A question of probable cause of seizure, under the piracy acts of the 3d March, 1819, c. 75, and the 15th of May, 1820, c. 1 12. [See note at the end of the case.] General rule as to libels in rem. [See note at the end of the case.] How far the strict rules of the common law, as to pleading in crimin-il cases, are applicable to informations in rem. How far a previous prosecution in personam is necessary to found the proceeding in rem. In such a case, although the crew may be protected by a commission bona fide received, and acted under, from the consequences attaching to the offence of piracy, by the general law of nations, although such commission was irregularly issued ; yet, if the defects in the commis- sion be such as, connected with the insubordination and predatory spirit of the crew, to ex- cite a justly founded suspicion, it is sufficient, under the act of congress, to justify the captors for bringing in the vessel for adjudication, and to exempt them from costs and damages. [See note at the end of the case.] Probable cause of seizure a bar to the claim for damages. *Although probable cause of seizure will not exempt from costs and damages, in seizures rj^Qno under mere municipal statutes, unless expressly made a ground of justification byL •'"^ the law itself, this principle does not extend to captures jure belli, nor to marine torts generally, nor to acts of congress authorizing the exercise of belligerent rights to a limited extent, such as the piracy acts of the 3d of March, 1819, c. 75, and the 15th of May, 1820, c. 112. [See note at the end of the case.] An objection to the competency of a witness on the ground of interest, cannot be taken in the supreme court on a hearing on the appeal, where the witness had been admitted without objection, in the district and circuit court. APPEAL from the circuit court of South Carolina. {a) Appointed May 9th, 1826. 327 398 SUPREME COURT. [The Palmyra.] This was a libel of information under the act of congress of the 3d of March, 1819, c. 75, entitled, " an act to protect the commerce of the United States, and punish the crime of piracy," continued in force bv the act of tlfe 15th of May, 1820, c. 112. The libel was filed by the district attorney, as well in behalf of the United States, as of the cap- tors ; and alleged that the brig Palmyra, alias the Panchita, was a ves- sel from which a piratical aggression, search, depredation, restraint, and seizure, had been attempted and made upon the high seas, in and upon the schooner Coquette, a vessel of the United States, and of the citizens thereof, and in and upon the master, officers, and crew of the said schooner Coquette, citizens of the United States ; and in and upon the Jeune Eugenie, a vessel of the United States, and of the citizens there- of, and in and upon Edward L. Coffin, the master, and the officers and crew of the said vessel, being citizens of the United States ; and also in and upon other vessels of the United States, their officers and crews, citizens of the United States ; and in and upon other vessels of various nations, states, and kingdoms, their officers and crews, citizens and subjects of the said states and kingdoms. The vessel in question was an armed vessel, ostensibly cruising as a privateer, under a commission from the king of Spain, and was ca,ptured on the high seas, on the 15th of August, 1823, by the United States' vessel of war the Grampus, com- manded by lieutenant Gregory, after a short resistance, and receiving a fire from the Grampus, by which one man was killed, and six men were wounded. The captured vessel was sent into the port of Charleston, South Carolina, for adjudication. A libel was filed, and a claim inter- posed ; and upon the proceedings in the district court, a decree was pronounced, restoring the brig to the claimants, without damages for the capture, injury, or detention. From this sentence, an appeal was interposed by both parties to the circuit court; and upon the hearing in that court, a decree was pronounced affirming so much of the decree as acquitted the brig, and reversing so much of it as denied damages; and the circuit court proceeded finally to award damages to the amount of ten thousand two hundred and eighty-eight dollars and ^ooQ-i *fifty-eight cents. From this decree an appeal was interposed J in behalf of the United States and the captors, to the supreme court. The cause coming on to be heard in this court, at February term, 1825, it not appearing that there had been any final decree in the circuit court, ascertaining the amount of damages, the cause was dismissed, (a) But, at the last term, it being discovered that in point of fact there had been a final award of damages, which was omitted by mistake in the transcript of the record certified by the clerk of the court below, this court, oij motion of the appellants, ordered the cause to be reinstated. At the hearing in the court below, it appeared that the commission of the Palmyra was numbered 38, and entitled, in the margin, " Real passaporte de corso para los mares de Indias ;" that is, " a royal cruis- ing passport for the Indian seas." The great seal of Spain was affixed to it, and it was signed with the royal sign manual, with the usual for- mula, " Yo el Reg." It was afterwards countersigned by the secretary of state and marine affairs, and dated at Madrid, the 10th of February, 1816. The blanks in the passport or commission were filled up to Don (a) 8. C. U Wheat. Eep. 503, 6 Cond. Rep. 200. 328 JANUARY TERM, 1827. 399 [The Palmyra.] Pablo Llanger, an inhabitant of Cadiz, to arm for war his Spanish schooner (goleta) called the Palmyra, of ninety-three tons, one twelve- pound cannon, and eight carronades, ten-pounders, with a crew of one hundred men. A printed note on the back of the commission, signed by Juan Dios Robiou, lieutenant in the national navy, and captain of the port of Porto Rico, dated on the 5th of February, 1822, renewed, the commission in favour of Llanger, as captain of the Palmyra, for a new cruise of three months, it having been originally granted for the term of three months, which had expired. The vessel on board of which the commission was found was in fact a brig of one hundred and sixty tons, commanded by captain Escura. Various testimony was taken as to the acts of piracy committed by the Palmyra upon the Co- quette and the Jeune Eugenie, as to the insubordination and predatory spirit of the crew of the Palmyra, and as to the nature and circum- stances attending the encounter between the Palmyra and the Grampus, which gave rise to a question of fact in respect to the justifiableness of the cause of capture. But it has not been thought necessary to analyze the testimony, as the most material facts are stated in the opinion of the court. The Attorney-General and Mr. Hayne, for the appellants, cited: Mat-tens, Privateers, 11 — 38. '2Azuni, 353, Mr. Johnson's translation. 3 Roh. 195, 224. 5 Roh. 280. Wheat. Capt. 41, 320. Martens, 4, 6. Bynk. Q. J. Pub., Duponceau's transl., 147. 2 Bro. Civ. and Adm. Law, 339. Molloy, 49. Locke v. The United States, 7 Cranch, 339, *348, 2 Cond. Rep. 521. 1 Mason's Rep. 27. 3 Cranch, 458, r^.^fv 49l,lCond. Rep. 597. The Marianna Flora, 11 WAeaf. iJep. l *"" 1 ; 6 Cond. Rep. 201. The Louis, 2 Dodson's Adm. Rep. 210. Mr. Tazewell, for the respondents, cited : 9 Wheat. Rep. 362, 5 Cond. Rep. 612. Mr. Justice Story delivered the opinion of the court. This is the case of a proceeding in rem, by a libel of information founded on the act of congress of the 3d of March, 1819, ch. 75, as continued in force by the act of congress of the 15th of May, 1820, ch. 112. The second section of the former act authorizes the president " to instruct the commanders of public armed vessels of the United States to seize, subdue, and send into any port of the United States, any armed vessel or boat, or any vessel or boat the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel." The fourth section declares " that whenever any vessel or boat, from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought, and the same court shall thereupon order a sale and distribu- tion thereof accordingly, and at their discretion." The brig Palmyra is an armed vessel, asserting herself to be a priva- teer, and actins under a commission of the king of Spain, issued by his Vol. VL— 42 • 2c 2 329 400 SUPREME COURT. [The Palmyra.] authorized officer at the island of Porto Rico. She was captured on the high seas, on the 15th of August, A. D. 1822, by the United States vessel of war Grampus, commanded by lieutenant Gregory, after, a short resistance, and receiving a fire from the Grampus, by which one man was killed, and six men were wounded. She was sent into Charleston, ' :ith Carolina, for adjudication. A libel was duly filed, and a claim i erposed ; and upon the proceedings in the district court of that district, a decree was pronounced by the court, that the brig be acquitted, without any damages for the capture, injury, or detention. From this decree an appeal was made by both parties to the circuit court ; and upon the hearing in that court, where, for the first time, the officers of the privateer were examined as witnesses, the circuit court pronounced a decree, affirming so much of the decree of the district court as acquitted the brig, and reversing so much of it as denied da- *40n ™^i^^' *^^^ proceeded finally to award damages to the claimants, -I to the amount of ten thousand two hundred and eighty-eight dol- lars and fifty-eight cents. From this decree there was an appeal, in- terposed on behalf of the United States and the captors, to the supreme court. The cause came on to be heard upon this appeal, at February term, 1825, and upon inspection of the record, it did not then appear that there had been any final decree, ascertaining the amount of damages. The court were of opinion, that if there had been no such decree, the case was not properly before the court upon the appeal, there not being any final decree, within the meaning of the act of con- gress. The court considered, that the damages were but an incident to the principal decree; that the cause was but a single one; and that the cause could not, at the same time, be in the circuit court for the purpose of assessing damages, and in this court upon appeal, for the purpose of an acquittal or condemnation of the vessel. The questions indeed were different ; but the cause was the same. Upon this ground, the appeal was dismissed. But at the last term of the court, it appear- ing that in point of fact there had been a final award of damages, and that the error was a mere misprision of the clerk of- the circuit court in transmitting an imperfect record, the court, upon motion of the ap- pellants, at the last term, ordered the cause to be reinstated. It is now contended, that this court had no authority to reinstate the cause after such a dismissal ; 1. Because it may operate to the prejudice of the stipulators of sureties, to whom the privateer was delivered, upon stipulation, in the court below; and, 2. Because the cause was capable of being heard in this court upon the appeal in respect to the decree of acquittal, that being the only decree in which the United States had any interest as a party; and that as to the damages, the captors were the only persons responsible for damages, and they alone had a right of appeal respecting the same ; so that by operation of law, the cause had become divided into two separate and distinct causes, in which each party was an actor. This court cannot concur in either objection. Whenever a stipula- tion is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the court, which it could properly exercise, if the thing itself were still in its custody. This is the known course 330 JANUARY TERM, 1827. 401 [The Palmyra.] of the admiralty. It is quite a different question, whether the court will, in particular cases, exercise its authority, where sureties on the stipulation may be affected injuriously. That is a subject addressed to its sound discretion. In the present case, there was no ground for sur- prise or injury *to the stipulators, or indeed to any party in in- r^^no terest. If there had been no final award of damages, the cause '- would not have been properly before this court, and the appeal itself, being a nullity, would have left the cause still in the circuit court. But as such an award was made, the appeal was rightfully made ; and the dismissal, being solely for a defect of jurisdiction apparent on the record, and founded on a mistake, constituted no bar to a new appeal, even if a general dismissal might. The appeal then might, at any time within five years, have been lawfully made, and have bound the parties to the stipulation, to all its consequences. The difference between a new ap- peal, and a reinstatement of the old appeal, after a dismissal from a misprision of the clerk, is not admitted by this court justly to involve any difference of right as to the stipulators. Every court must be pre- sumed to exercise those powers belonging to it, which are necessary for the promotion of public justice ; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake. The reinstatement of the cause was founded, in the opinion of this court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases. The other objection has not, in our opinion, a more solid foundation. The libel was filed by the district attorney, as well in behalf of the United States, as of the captors, and prayed, as usual, a condemnation of the vessel, and distribution of the proceeds. This fact is noticed for the purpose of answering the observation made at the bar, as to the parties to the libel. It has been supposed, that the United States, and the captors, are to be deemed severally libellants, having distinct rights, both of prosecution and appeal. But this proceeds upon a mistake. In every case of a proceeding for condemnation, upon captures made by the public ships of war of the United States, whether the same be cases of pr^ze, strictly jure belli, or upon public acts in the nature of captures jure belli, the proceedings are in the name and authority of the United States, who prosecute for themselves as well as for the cap- tors. The captors cannot, without the authority of the government, proceed to enforce condemnation. The suit is, in form and substance, a proceeding by and in the name of the United States, for the benefit of all concerned. And whether the question respect the point of condem- nation, or of damages, the United States have a right of appeal co-exten- sive with the whole matter in litigation, and may interpose their protec- tion to guard their agents and officers against injury and damages. These agents and officers are, indeed, in a certain sense, parties to the suit, as the seizing officer is in cases of mere municipal seizures ; and when the claimant makes himself, by a demand of damages, an actor *in the suit, no doubt exists that the court may proceed to decree r#4n«> damages against them, and thus entitle them to a separate right '- of appeal, if the government should feel that it had no further interest to pursue the suit. But still the right to damages must always be de- pendent upon the question of condemnation or acquittal, for it can never be successfully contended, that if a condemnation is finally adjudged, a 331 403 SUPREME COURT. [The Palmyra.] decree for damages can be maintained. And, on the other hand, in a case of acquittal, the whole circumstances of the case must be taken into consideration, in order to ascertain that the case is one which justi- fies an award of damages. In the present case, there was an appeal entered by the district attorney for the United States, and also for the captors, from the decree of the circuit court. If this decree was final, such an appeal brought up the whole cause as to all the parties ; and would, in point of law, have produced the same effect, if in form the appeal had only been in the name of the United States. If the decree was not final, (as upon the original record it appeared to this court not to be,) then it was void as to all parties. Either way, then, there never was any separation of the parties libellants, so as to give rise to the point of separate independent causes. We are, then, of opinion, that the whole cause is now rightfully before us. It is contended on behalf of the appellees, that the present suit cannot be maintained, because the libel itself is fatally defective in its aver- ments. It is said to be too loose, inartificial and general in its structure, to give a just foundation for any judgment of condemnation. If this were admitted to be true, the only effect would be, supposing the merits on the evidence appeared to be in favour of the libellants, that the court would, according to its known course of practice, remand the cause to the circuit court, with directions to allow an amendment of the libel, and ulterior proceedings consequent thereon. But there is asserted to be another fatal defect in the averments of the libel, which is incapable of being cured, because it cannot be established in point of fact ; and that is, that the offenders are not alleged to have been convicted upon any prosecution in personam, of the offence charged in the libel. The argument is, that there must be a due conviction upon a prosecution and indictment for the oflfence in personam, averred and proved, in order to maintain the libel in rem. In respect to the first objection, it must be admitted, that the libel is drawn in an inartificial, inaccurate, and loose manner. The strict rules of the common law as to criminal prosecutions, have never been sup- posed by this court to be required in informations of seizure in the ad- miralty for forfeitures, which are deemed to be civil proceedings in rem. Even on indictments at the common law, it is often sufficient to state #4041 *'^® offence in the very terms of the prohibitory statute ; and J the cases cited by the attorney-general are directly in point. In informations in the exchequer for seizures, general allegations bring- ing the case within the words of the statute, have been often held suf- ficient. And in this court it has been repeatedly held, that in libels in rem, less certainty than what belongs to proceedings at the common law, will sustain a decree of condemnation, if the words of the statute are pursued, and the allegations point out the facts, so as to give reasonable notice to the party to citable him to shape his defence. There is, indeed, in admiralty proceedings, little ground to insist upon much strictness of averment, because, in however general terms the offence may be articulated, it is always in the power of the court to prevent surprise, by compelling more particular charges as to the matters intended to be brought forward by the proofs. In general, it may be said, that it is sufficient in libels in rem, for forfeitures, to allege the offence in the terms of the statute creating the forfeitures. There may be exceptions 332 JANUARY TERM, 1827. 404 [The Palmyra.] to this rule, where the terms of the statute are so general as naturally to call for more distinct specifications. Without pretending to enume- rate such exceptions, let us look at the allegations in the amended libel in the present case. It charges, " that the said brig, called the Palmyra, &c., was, and is, a vessel from which a piratical aggression, search, de- predation, restraint, and seizure, has been first attempted and made, to wit, upon the high seas, in and upon the schooner Coquette, a vessel of the United States, and of the citizens thereof, and in and upon the master, officers, and crew of the said schooner Coquette, citizens of the United States ; and also in and upon the Jeun6 Eugenie, a vessel of the United States, and of the citizens thereof, and in and upon Edward L. Coffin, the master, and the officers and crew of the said vessel, being citizens of tfie United States, and also in and upon other vessels of the United States, their officers and crews, citizens of the United States, and in and upon other vessels of various nations, states, and kingdoms, their officers and crews, citizens and subjects of said states and king- doms." Now, whatever may be said as to the looseness and generality, and consequent insuflSciency of the latter clauses of this allegation, the former, specifying the Coquette and Jeune Eugenie, (upon which alone the proofs mainly rely for condemnation,) have, in our opinion, reason- able and sufficient certainty. It was not necessary to state in detail the particular acts constituting the piratical aggression, search, depre- dation, restraint, or seizure. The general words of the statute are sufficiently descriptive of the nature of the offence ; and the particular acts are matters proper in the proofs. We may, then, dismiss this part of the objection. *The other point of objection is of a far more important and r^Ann difficult nature. It is well known, that at the common law, in ■■ many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture did not, strictly speaking, attach in rem ; but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offence; but the right attached only by the conviction of the offender. The necessary result was, that in every case where the crown sought to recover such goods and chattels, it was indispensable to establish its right by producing the record of the judgment of con- viction. In the contemplation of the common law, the offender's right was not devested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute, in rem, cogni- sable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing ; and this, whether the offence be malum prohibitum, or malum in se. The same principle applies to proceedings in rem, on seizures in the admiralty. Many cases exist, where the forfeitures for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist, where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been, and so this court understand the law to be, that the proceeding in rem stands independent of, and wholly un- affected by any criminal proceeding in personam. This doctrine is 333 405 SUPREME COURT. [The Palmjra.] deduced from a fair interpretation of tlie legislative intention apparent upon its enactments. Both in England and America, the jurisdiction over proceedings in rem, is usually vested in different courts from those ^ exercising criminal jurisdiction. If the argument at the bar were well founded, there could never be a judgment of condemnation pronounced against any vessel coming within the prohibitions of the acts on which the present libel is founded ; for there is no act of congress which pro- vides for the personal punishment of offenders, who commit " any pira- tical aggression, search, restraint, depredation or seizure," within the meaning of those acts. Such a construction of the enactments, which goes wholly to defeat their operation, and violates their plain import, is utterly inadmissible. In the judgment of this court, no personal con- viction of the offender is necessary to enforce a forfeiture in rem in cases of this nature. Having disposed of these questions, which are preliminary in their nature, we may now advance to the consideration of those which turn *40fil *'^P°" *^^ merits of the cause. These questions are, 1. Whether J the present be, upon the facts, a case for condemnation ; and, if not, 2. Whether it be a case for remunerative damages; for vindictive damages are and must be disclaimed. Upon the first point, it is unnecessary to go into any examination at large of the various facts preceding and accompanying the capture, be- cause the judges are divided in opinion ; and consequently, according to the known practice of the court, the decree of the circuit coutt, so far as it pronounced a decree of acquittal, must be affirmed. , In respect to the second point, we are all of opinion that the case is clearly not a case for damages. The whole circumstances present such well-founded grounds for suspicion of the piratical character and con- duct of the privateer, as required lieutenant Gregory, in the just exer- cise of his instructions from the president, under the acts of congress, to subdue and send her in for adjudication. That her crew were guilty o-f plunder from the Coquette and the Jeune Eugenie, is established by proofs entirely competent and satisfactory. Her exercise of the right of search on these vessels was irregular and unjustifiable, and indicated on the part of the boarding officers no disinclination to petty thefts, if they avoided forcible robbery. Her commission is itself liable to much suspicion and criticism. It varies essentially in the description of the rig, the size, and the denomination of the vessel from that on board of which it is found. It purports to be for a schooner of ninety-three tons, under the command of Don Pablo Llanger ; it is found on board of a brig of one hundred and sixty tons, commanded by captain Escurra. It was originally granted for a three months' cruise, which had ex- pired ; and it purports to be renewed by the port-captain of Porto Rico, a subordinate agent of the king of Spain, for a new cruise, by an en- dorsement on it, without any known authority. We do not advert to these circumstances to establish the position that the commission was utterly void, or rendered the exercise of belligerent rights piratical. Whatever may be the irregularities in the granting of such commis- sions, or the validity of them, so far as respects the king of Spain, to fo'und an interest of prize in the captors, if the Palmyra bona fide re- ceived it, and her crew acted bona fide under it, it ought, at all events, n the courts of neutral nations, to be held a complete protection against 334 JANUARY TERM, 1827. 406 [The Palmyra.] the imputation of general piracy. But the defects of the commission, connected with the almost total want of order and command on board of the privateer, and the manifest insubordination, and predatory spirit of the crew, could not but inflame to a high degree every other just suspicion. In short, taking the circumstances together, the court think that they presented, prima facie, a case of piratical aggression, search, *restraint, and depredation, within the acts of congress, open to rstAfvj explanation indeed, but, if unexplained, pressing heavily on the ■- vessel for the purpose of forfeiture. Lieutenant Gregory, then, was justifiable in sending her in for adjudication, and has been guilty of no Wrong calling for compensation. It has been argued at the bar that probable cause of seizure in this case constitutes no ground of defence against the claim of damages. It has been truly stated as the settled doctrine of this court, that, in cases of seizures under municipal laws, probable cause, unless so made by statute, constitutes no ground for denying damages, or justifying the seizure. But it is supposed that probable cause is not an excuse or jus- tification of any seizure or capture, except in cases jure belli; and the case of The ApoUon, in this court, 9 Wheat. Rep. 362, 5 Cond. Rep. 612, is relied on to establish this position. That case contains no doc- trine leading justly to any such conclusion. It was a case of seizure under our revenue laws, and, in the opinion of the court, the point is examined how far probable cause constituted, in that case, a ground to exempt from damages. On that occasion, the court said that the argument had not distinguished between probable cause as applied to cases of capture jure belli, and as applied to cases of municipal seizures ; and then proceeded to state the distinction. There was no intimation that in cases of marine torts generally, or under laws au- thorizing the exercise to a limited extent of belligerent rights, or quasi belligerent rights, probable cause might not be a sufficient excuse. In the case of The Marianna Flora, at the last term, 11 Wheat. Rep. 1, 6 Cond. Rep. 201, the very point was before the court ; and it was in that case held that probable cause was a sufficient excuse for a capture under circumstances of hostile aggression at sea. Indeed, in cases of marine torts arising under the general maritime law, probable cause often is a complete excuse for the act, and always goes in mitigation of damages. In the admiralty, the award of damages always rests in the sound discretion of the court, under all the circumstances. The case of the St. Louis, in 2 Dods. Rep. 210, is a strong illustration of the doctrine. But, in cases like the present, where the public armed ships of the United States are authorized to make captures to a limited ex- tent, the authority so exercised by them must be deemed to stand upon the same analogy as captures strictly jure belli. And the doctrine of the prize courts as to the denial of damages where there is probable cause for the capture, furnishes the proper rule to govern the discretion of the court. We are, then, of opinion that, in the present case, thero was strong probable cause for the capture, and that the *decree r^^no of the circuit court, so far as it awards damages to the claim- '- ants, ought to be reversed. It remains only to remark but one or two points made against the competency of some of the testimony in the cause. It is objected that 408 SUPREME COURT. [The Palmyra.] lieutenant Gregory is not a competent witness, because he is, notwith- standing his release of his interest as captor, interested to defeat the claim for damages. However well-founded this objection may be as to his competency on the point of damages, having been admitted both in the district and circuit courts as a witness without objection, we think there was a waiver of the objection, and it cannot now be insisted on. As to the depositions of captains Souther and Coffin, they were taken under commissions duly issued from the circuit court according to the rule of this court, and are, therefore, admissible upon the strictest principles. Probabk cause of seizure. See notes, 2 Cond. Rep. 12. Probable cause nf prosecution. See notes, 2 Cond. Rep. 524. Proceedings in rem in cases of admiralty jurisdiction. See notes of cases, 4 Cond. Rep. 496. Commission. As to the abuse of a commission regularly issued, the following have been the decisions : A commission, regularly issued, may be forfeited by grossly illegal conduct ; and a conimis- sion fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although the parties intended to use it as a cover for illegal purposes. T/ie Experiment, 8 Wheat. 261, 5 Cond. Rep. 433. If a commission is fairly obtained, without imposition or fraud upon the officers of govern- ment, it is not void, merely because the parties privately intended to violate, under its protection, the laws of their country ; nor is the abuse of the commission, per se, evidence tliat it was originally obtained by fraud and imposition. Ibid. Where a capture has actually taken place with the assent, either expressed or implied, of the commander of the squadron, the prize-master may be considered as bailee to the use of the whole squadron who are to share in the prize-money, and thus the commander is made respon- sible ; but not so as to mere trespasses unattended with a conversion to the use of the squadron. Ibid. The commander of a United States ship of war, if he seizes a vessel on the high seas with out probable cause, is liable to make restitution in value, with damages and costs, even although the vessel is taken out of his possession by a superior force ; and the owner is not bound to look to the recaptor, but may abandon, and hold the original captor liable for the whole loss. Male}/ V. Shatiuck, 3 Cranch, 458, 1 Cond. Rep. 597. In cases of illegal capture, where the vessel and cargo have been entirely lost to the owner, the proper measure of damages is the prime value and interest to the judgment; in the case of gross illegality, damages have been restricted to demurrage and interest on the principal of the captured property. The lively, 1 Gallis, 315. Where the property has been sold, and no account of sales has been rendered, the */tnQ1 "'alue is estimated at the prime cost and ten per cent, profit; where an account of ^""J sales is rendered, that in general is made the measure of the decree. Ibid. Freight is a proper item for allowance in estimating the damages arising from illegal capture, where the voyage has been lost, or the cargo been unliveried. Ibid. But it is not to be allowed where the vessel has been restored with the cargo on board, and in a situation capable of performing the voyage. Ibid. Supposed profits are not to form an item of damage in case of restitution. Ibid. If captors wantonly injure the captured crew, the prize court will award damages for per- sonal ill usage. Ibid. In estimating damages against a captor, a vindictive compensation is not to be allowed, unless where the misconduct has been very gross and without apology. Ibid. But the damages ought to be equal to the real injury sustained. Ibid. The captors are not liable to damages, where there is probable cause of capture. The Liver- fiool Packet, 1 Gallis, 513. 336 JANUARY TERM, 1827. 409 [Martin v, Mott.] Maritime torts. Damages. Every capture is at the peril of the party. The captor therefore muat show just grounds for the violence, or he is liable to an action for damages, and before be can have condemnation, must prove the ship to be the property of the enemy. The Resolution, 1 Dal. 1. The owners of a privateer are responsible for the conduct of their agents, the officers and crew, to all the world ; and the measure of such responsibility is the full value of the property injured or destroyed. Del Col v. Arnold, 8 Dal. 333, I Cond. Eep. 150. A public officer intrusted, on the high seas, to perform a duty deemed necessary by hia country, and executing, according to the best of his judgment, the orders he has received, ought never to be assessed with vindictive or speculative damages. Murray v. The Charming Betsey, 2 Cranch, 124, 1 Cond. Eep. 358. Upon an illegal seizure, the original wrong-doers may be made responsible beyond the loss actually sustained, in a case of gross and wanton outrage ; but the owners of the privateer, who are only constructively liable, are not bound to the extent of vindictive damages. The Amiable Nancy, 3 Wheat. 546, 4 Cond. Rep. 322 ; 1 Paine, 111, S. C. Damages are not recoverable in such case for a deterioration of the cargo, not occasioned by the improper conduct of the captors. Ibid. The possible or probable profits of an unfinished voyage, afibrd no rule to estimate the damages, in a case of marine trespass. Ibid. La Amistad de Rues, 5 Wheat. 385, 4 Cond. Rep. 697. The prime cost or value of the property lost, and, in case of injury, the diminution in value, by reason of the injury, with Interest thereon, affords the true rule for estimating damages in such a case. Ibid. An item for the ransom of the vessel and cargo which had been subsequently seized by an- other belligerent, as alleged, for the want of papers of which the vessel had been deprived by the first captors, not admitted in estimating damages. Ibid. Where the captor transcends his powers and rights, he becomes guilty of a marine trespass, and is amenable in damages for the injury sustained ; and where the vessel has been lost in consequence of such illegal acts, the value of the vessel, the prime cost of the cargo, with all charges, and the premium of Insurance are to be allowed in ascertaining the damages. The Anna Maria, 2 Wheat. 327, 4 Cond. Rep. 139. The commander of a squadron is liable to individuals, for the trespasses of those under his command, in case of positive or permissive orders, or of actual presence and co-operation. The Eleanor, 2 Wheat. 345, 4 Cond. Rep. 149. *Martin, Plaintiff in error, v. Mott, Defendant in error [*410 12 Wheaton's Reports, 19. The authority to decide whether the exigencies contemplated in the constitution ol (he United States, and the act of congress of 1795, ch. lOlXn which the president has authority to call forth the militia, " to execute the laws of the union, suppress insurrections, and repel inva- sions," have arisen, is exclusively vested in the president, and his decision is conclusive upon all other persons, [See note at the end of the case.] Although a militia-man, who refused to obey the orders of the president, calling him into the public service under the act of 1795, is not, in the sense of that act, "employed in the ser- vice of the United States," so as to be subject to the rules and articles of war ; yet he is liable to be tried for the oifcnce under the fifth section of the same act, by a court-martial called under the authority of the United States, Where, in an actioij of replevin, the defendant, being a deputy marshal of the United States, avowed and justified the taking the plaintiff's goods, by virtue of a warrant issued to the marshal of the district, to collect a fine imposed on him by the judgment of a court-martial, described as a general court-martial composed of officers of the militia of the state of New York, in the service of the United States, (six in number, and naming them,) duly organized and convened, by general orders, issued pursuant to the act of congress of February 28, 1795, ch. lOUAr the trial of those of the militia of the state of New York, ordered into the Vol. VI.^3 2D 337 410 SUPREME COURT. [Martin v. Mott.] service of the United States in the thirj military district, who had refased to rendezvous and enter into the service of the United States, in obedience to the orders of the commander in chief of the state of New Yorlc, of the 4th and 29th of August, 1814, issued in compliance with the requisition of the president made in pursuance of the same act of congress, and alleging that the plaintiif, being a private in the militia, neglected and refused to rendezvous, &e., and was regularly tried by the said general court-martial, and duly convicted of the said delinquency : held, that the avowry was good. It is not necessary that the court-martial for the trial of delinquents, under the act of 1795, should be composed of the precise number of officers required by the rules and articles of war for the composition of general courts-martial in the army. A court-martial regularly organized under the act of 1795, does not expire with the termina- tion of a war then existing. ERROR to the court for the trial of impeachments and correction of errors of the state of Ne\Y York. ■ This was an action of replevin, originally brought in the supreme court of New York by the defendant in error, Mott, against the plaintiff in error, Martin, to which an avowry was filed, containing, substan- tially, the following allegations : that on the 18th of June, 1812, and from thence until the 25th of December, 1814, there was public and open war between the United States of America, and the united king- dom of Great Britain and Ireland, and its dependencies, and the citizens and subjects of the said countries respectively ; and that during the continuance of the said war, to wit, on the 4th day of August, 1814 ; *41 n *^^^ ^'^*'' '^^ *'i^ 29th day of the same month, in the same year, J at the city of New York, to wit, at Poughkeepsie, in the county of Duchess, his excellency Daniel D. Tompkins, Esquire, was then and there governor of the state of New York, and commander-in-chief of the militia thereof, and being so governor and commander-in-chief, he, the said Daniel D. Tompkins, as such governor and commander-in-chief, on the several days last aforesaid, and in the year aforesaid, and at the place aforesaid, upon the previous requisitions of the president of the United States, for that purpose made, and to him directed, as such go- vernor and commander-in-chief, did issue two several general orders, bearing date respectively on the said 4th and 29th days of August, in the year aforesaid, in and by which said two general orders, among other things, the said Daniel D. Tompkins, as governor and commander- in-chief as aforesaid, pursuant to such requisitions, and in compliance therewith, did detail certain parts and portions of the militia of the state, as he was required to do, in and by the requisitions of the presi- dent of the United States, as aforesaid, and did order the militia, so de- tailed into the service of the United States of America, at the city of New York, within the third military district of the said United States, as in and by the said two general orders may more fully appear. That the said Jacob E. Mott, on the several days, and in the year aforesaid, and until the 25th of December, in the same year, being a white citizen of the said state of New York, inhabiting and residing within the same, and between the ages of eighteen and forty-five years, was liable to do military duty in the militia of the said state, and was a private in the militia of the said state that was so detailed and ordered into the ser- vice of the United States aforesaid, and as such private in said militia was bound to do military duty in the militia of the said state so detailed and ordered into the service of the United States, in the third military district of the United States. That on the 24th of September, 1814, 338 JANUARY TERM, 1827. 411 [Martin v. Mott.] Morgan Lewis, Esquire, was a major-general, commanding the army of the United States, of the third military district of the said United States, in which district the militia of the state of New York, detailed and ordered into the service of the United States as aforesaid, had been ordered to do military duty in the service of the United States. And the said Morgan Lewis, so being a major-general, and commanding as aforesaid, did on the day, and in the year last aforesaid, as such. major-" general and commander, issue general orders to convene a general court- martial for the purpose in the said orders expressed, composed of so many and such militia officers in the service of the United States, in the said third military district, as in the said orders are mentioned ; it having been then and there considered and adjudged by the said Mor- gan Lewis, that a greater number of *officers than those detailed r^^^in on the said court-martial, could not be spared from the service L of the United States without manifest injury to the said service ; which said general orders are in the words and figures following, to wit: " adjutant-general's office, 3d M. D. New York, 24th September, 1814. General orders. A general court-martial, under the act of congress of the 28th of February, 1795, for the trial of those of the militia of the state of New York, ordered into the service of the United States, in the third military district, who have failed to rendezvous pursuant to orders, will convene on Monday, the 26th instant, at Harmony Hall, and will consist of the following members," (enumerating them, being six in number,) which general court-martial was continued (although varied as to its members) by various general orders set out in the avowry, until the 13th of May, 1818. That the said J. E. Mott, being so liable, &c., did fail, neglect, and refuse to rendezvous and enter into the service of the United States, in obedience to the orders issued by the governor of the state, on the requisition of the president of the United States, and in compliance therewith. That on the 30th of May, 1818, the said court-martial convened at Poughkeepsie, within the said third military district, at which time and place, the said Jacob E. Mott was duly summoned to appear before the said court-martial ; and did then and there appear before the said court-martial, and make his de- fence to the charges alleged against him as aforesaid. That the said general court-martial then and there tried the said Jacob E. Mott for having failed, neglected, and refused to rendezvous, and enter into the service of the United States, in obedience to the orders aforesaid, is- sued in compliance with the requisition aforesaid ; and after hearing the proofs and allegations, as well on the part of the United States, as on the part of the said Jacob E. Mott, then and there convicted the said Jacob E. Mott of the said delinquency ; and thereupon the said general court-martial imposed the sum of ninety-six dollars as a fine on the said Jacob E. Mott, for having thus failed, neglected, and refused to rendezvous, and enter into the service of the United States, when there- to required as aforesaid. That before the said last-mentioned day, to wit, on the twenty-fifth of December, one thousand eight hundred and fourteen, a treaty of peace was made and concluded between the United States and the united kingdom of Great Britain and Ireland and its dependencies; and that the said Morgan Lewis, and Daniel D. Tompkins, the major-generals who issued the orders organizing, con- vening, and continuing the said general court-martial as aforesaid, were 339 412 SUPREME COURT. [Martin v. Mott.] not continued as such major-generals as aforesaid, in the service of the United States aforesaid, at the time herein next afterwards mentioned, nor was there any other officer of equal grade with the said last-men- • ' 1 ^1 TT " 1 £M *41^1 ^"'"^'^ *major-generals in the service of the United fetates, com- -' mahding in the military district aforesaid, at the time the said court imposed the fine and sentence aforesaid on the said plaintift" as aforesaid, by whom the said sentence could be approved ; but that the said fine, sentence and proceedings of the said court-martial, so far as they related to the case of the said Jacob E. Mott, were duly approved by the president of the United States, before the same were certified by the president of the court-martial aforesaid, to the marshal of the southern district of the state of New York, as hereinafter mentioned, and before the fourth day of June, one thousand eight hundred and fourteen. That the president of the said general court-martial, after- wards, to wit, on the day and year, and at the place last aforesaid, in pursuance to the statute of the United States, in such case made and provided, did make a certificttte in writing, whereby he did, under his hand, certify to the marshal of the southern district of New York, that the sum of ninety -six dollars was imposed as a fine on the .said Jacob E. Mott, for having thus failed, neglected, and refused to enter the ser- vice of the United States, when hereunto required as aforesaid, and that the said Jacob E. Mott was sentenced by the said general court- martial, on failure of the payment of said fine imposed on him, to twelve months' imprisonment. The avowry then proceeded to state the authority of the plaintiff in error, Martin, as deputy marshal, to execute such certificate, and that, in the execution thereof, he took the said goods, &.c. To this avowry the plaintiflf in replevin demurred, and assigned the following causes of demurrer : 1. The said defendant, in his said avowry, does not allege that the president of the United States had adjudged that there was an invasion ; or imminent danger of an invasion ; or that any of the exigencies had occurred, in which the president is empowered to call out the militia by the constitution of the United States. 2. The said defendant in the said avowry does not aver that any such previous requisition upon the governor was, in fact, made by the presi- dent of the United States ; no such requisition is set forth, nor is the date or substance thereof, or the number of militia thereby required, stated in the said avowry. 3. The said avowry does not state that the said militia were ordered into actual service, in compliance with such requisition ; nor does it ap- pear that the militia were required by said requisition to rendezvous or act within the territory of the United States. 4. The said avowry does not sufficiently show or set forth either the particulars or substance of the said orders of the governor of the state of New York, in the said avowry mentioned, in such manner that it */1141 ^^" *appear whether the said orders, or either of tliem, directed J all those of the militia called out thereby, to rendezvous or enter the service of the United States upon the requisition of the said Presi- dent, solely, or whether the said orders also called out a part of the same militia, by, under, and pursuant to the authority and laws of the state of New York, without the requisition of the said president, and 340 JANUARY TERM, 1827. 414 [Martin v. Motl.] without designating which were ordered to rendezvous and enter the service by the said respective authorities. 5. The said avowry does not show that the two said several orders of the governor were cumulative, explanatory of, auxiliary to, or in any way connected with each other : nor whether both of the said orders embraced the same or different persons, and required the same or dif- ferent duties ; nor with such certainty that it can appear whether a disobedience of the other or both of the said orders would be the same, a different, or an additional offence, subject to the same or different jurisdiction ; nor does it state the number of the militia called out by the said orders, so that it can appear whether in that respect the said orders were in compliance with the requisitions of the president, nor by which of the said orders the Said plaintiff was called forth into the service of the United States ; in all which the said avowry is uncertain and insufficient. 6. The said avowry is double and uncertain, inasmuch as therein the said plaintiff is charged with having committed two several offences in the disobedience of the two said several orders of the governor, without showing that both offences were necessary for the trial and conviction of the said plaintiff; or any reason why the said orders should be so blended together ; and because the said orders are so blended together without showing any dependence upon each other, or any connection between them. 7. The general orders in the said avowry set forth, under and by virtue of which the said court-martial was convened, and tried, convicted, and fined the said plaintiff, are deficient, uncertain, vague, inoperative, void, and of no effect, and conferred upon the said court-martial, or the members thereof, no jurisdiction over the said plaintiff, or the offence with which he is charged in the said avowry, inasmuch as the said last- mentioned general orders convened said court-martial forthe trial of those of the militia of the state of New York, ordered into the service of the United States, in the third military district, who had failed to rendezvous pursuant to orders, without specifying in any manner, when, by whom, to whom, or by what authority, or in what manner such orders should have been issued in regard to the said militia, or when such militia had failed to rendezvous, or whether the orders pursuant to which said mi- litia should have failed to rendezvous, were the same orders calling said *militia into service in said third military district, or required r#^ic them to rendezvous elsewhere or otherwise. "- 8. The said defendant in his said avowry states, that the said court- martial was duly convened in pursuance of the said several general orders, in the said avowry set forth, on the 24th day of October, 1814; a day long before the last of the said general orders, by which the said court is stated to have been duly convened, was issued, as appears by the said avowry, all which is repugnant and contradictory. 9. The orders for convening the said court-martial, as in the said avowry set forth, are further uncertain, because by the said orders, the said court-martial is stated to have been convened under the act of con- gress of the 28th day of February, 1795, without showing which of the acts of congress of that date is intended. 10. The trial of the said plaintiff by the said court-martial, as ap- pears by the said avowry, was in a time of profound peace. 2d2 341 415 SUPREME COURT. [Martin v. Mott.] 11. The said court-martial had no power or authority under the said general orders by which they were convened, to try, convict, and fine the said plaintiff, for having failed, neglected and refused to rendezvous and enter the service of the United States, in obedience to the orders aforesaid, issued in compliance with the requisitions aforesaid. 12. The said court-martial, consisting of less than thirteen members, had no power nor authority to try, convict, and fine the said plaintiff, at the time said trial was had, it being a time of peace, without show- ing that thirteen militia officers could not at that time, be spared with- out manifest injury to the service. 13. By the said avowry it doth not appear whether all or how many of the persons detailed by the said general orders as members of the said court-martial, continued to remain in the service of the United States at the time when the said plaintiff was tried ; or that the places of such as had resigned were supplied by others appointed in their stead ; or in what manner the said court was duly convened ; or of how many members it was then composed ; and whether all the per- sons who acted as members of the said court-martial, at the time when the said plaintiff was tried, were then commissioned officers of the militia, of competent rank, and in the service of the United States. 14. The said avowry does not allege that the orders by which the said court-martial was continued in service until further orders, re- mained still unrevoked at the time when the said plaintiff was tried. 15. The said avowry does not show in what manner, when, or by whom the said plaintiff was duly summoned to appear before the said court-martial. 16. The said avowry does not show at what time the said Morgan •j^A^n-l *Lewis and Daniel D. Tompkins were discontinued; nor but J that they were such major-generals commanding as aforesaid, on the said 13th day of May, 1818 ; nor but that at the time of the said trial there was a major-general, of equal rank with the said Mor- gan Lewis and Daniel D. Tompkins, commanding an army in the ser- vice of the United States, or some other officer of competent authority, in some military division of territory comprising the said third mili- tary district, by whom the sentence of said court-martial could have been approved. 17. By the said sentence of the said court-martial, as the same is in the said avowry set forth, the said Gerard Steddiford, president of the said court, had nopoweror authority to issue such a certificate as is in the said avowry mentioned, inasmuch as the said certificate is variant from the said sentence. 18. The said defendant does not in his said avowry allege that the said plaintiff ever was in the service of the United States before, at the time when, or after, the said orders of the governor, of the 4th and 29th days of August, 1814, were issued, or at the time when the said orders for detailing the said court-martial were issued, when said court-mar- tial convened, or when the said trial took place, and the said fine was imposed. 19. The said certificate of the said Gerard Steddiford, as in the said avowry set forth, does not show with sufficient certainty by what court, or by whom, or by what authority the said fine was imposed ; nor does it appear that the said Gerard Steddiford made the said cer- 342 JANUARY TERM, 1827. 416 [Martin v. Mott] tificate, as such president of the said court-martial, or signed the same in his official capacity. And also, that the said avowry is, in other respects, uncertain, infor- mal, and insufficient, &c. The defendant in replevin (now plaintiff in ^rror) joined in demurrer ; and judgment was rendered in behalf of the plaintiff in replevin, in the ' supreme court, which was affirmed by the court for the trial of im- peachments and correction of errors. The causa was then brought before this court, by writ of error, under the twenty-fifth section of the judiciary act of 1789, c. 20. The cause was argued by the Attorney-General, and Mr. Coxe, for the plaintiff in error ; and by Mr. D. B. Ogden, for the defendant in error : but as the grounds of argument are fully stated in the opinion of the court, it has not been thought necessary to insert it. Mr. Justice Story delivered the opinion of the court. This is a writ of error to the judgment of the court for the trial of impeachments and the correction of errors of the state of New York, ♦being the highest court of that state, arid is brought here in r^Air^ virtue of the twenty-fifth section of the judiciary act of 1789, '- ch. 20. The original action was a replevin for certain goods and chat- tels, to which the original defendant put in an avowry, and to that avowry there was a demurrer, assigning nineteen distinct and special causes of demurrer. Upon a joinder in demurrer, the supreme court of the state gave judgment against the avowant; and that judgment was affirmed by the high court to which the present writ of error is addressed. The avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a court-martial, for a failure to enter the service of the United States as a militia-man, when thereto required by the president of the United States, in pursuance of the act of the 28th of February, 1795, c. 101. It is argued that this avowry is defective, both in substance and form; and it will be our business to discuss the most material of these objections ; and as to others, of which no parti- cular notice is taken, it is understood that the court are of opinion, that they are either unfounded in fact or in law, and do not require any se- parate examination. For the more clear and exact consideration of the subject, it may be , necessary to refer to the constitution of the United States, and some of the provisions of the act of 179.5. The constitution declares that con- gress shall have power " to provide for calling forth the militia, to execute the laws of the union, suppress insurrections, and repel inva- sions :" and also " to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." In pursuance of this authority, the act of 1795 has provided, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president of the United States to call forth such number of the militia of the state or states most con- venient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose 343 417 SUPREME COURT. [Martin v. Mott.] to such officer or officers of the militia as he shall think proper." And like provisions are made for the other cases stated in the constitution. It has not been denied here, that the act of 1795 is within the constitu- tional authority of congress, or that congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to *4181 *P'"0'^i'^6 the requisite force for action before the invader himself J has reached the soil. The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power ; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondtent re- sponsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided ? Is the president the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the president are ad- dressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the president'' We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the president, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the' union. A prompt and unhesitating obedience to orders is indispen- sable to the complete attainment of the object. The service is a mili- tary service, and the command of a military nature ; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopard the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If "the power of regulating the militia, and of commanding its services in times of insurrection and invasion, are (as it has been emphatically said they are) natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the con- federacy," (a) these powers must be so construed as to the modes of their exercise as not to defeat the great end in view. If a superior officer has a right to contest the orders of the president upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier ; and any act done by any person in (a) The Federalist, No. 29. 344 JANUARY TERM, 1827. 419 [Martin v. Mott.] ^furtherance of such orders would subject him to responsibility r#.^iq in a civil suit, in which his defence must finally rest upon his '■ ability to establish the facts by competent proofs. Such a course would be subversive of all discipline, and expose the best disposed officers to the chances of ruinous litigation. Besides, in many instances, the evi- dence upon which the president might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment. If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, '^whenever the United States shall be invaded, or be in imminent danger of invasion, &c., it shall be lawful for the president, &c., to call forth such number of the militia, &c., as he may judge necessary to repel such in- vasion." The power itself is confided to the executive of the union, to him who is, by the constitution, " the commander-in-chief of the militia, when called into the actual service of the United States," whose duty it is to "take care that the laws be faithfully executed," and whose re- sponsibility for an honest discharge of his official obligations is secured by the highest sanctions. He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law ; and it would seem to follow as a neces- sary consequence, that every act done by a subordinate officer, in obe- dience to such orders, is equally justifiable. The law contemplates that, under such circumstances, power shall be given to carry the orders into effect ; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the president, or for any right in subordinate officers to review his decision, and in effect defeat it. Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclu- sive judge of the existence of those facts. And, in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the executive must be pre- sumed *to possess, of public virtue, and honest devotion to the r^AQO public interests, the frequency of elections, and the watchfulness '- of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or ivanton tyranny. This doctrine has not been seriously contested upon the present oc casion. It was indeed maintained and approved by the supreme court of New York, in the case of Vanderheyden j;. Young, 11 Johns. Rep. 150, where the reasons in support of it were most ably expounded by Mr. Justice Spencer, in delivering the opinion of the court. But it is now contended, as it was contended in that case, that not- VoL. VI. — 44 345 420 SUPREME COURT. [Martin v. Molt.] withstanding the judgment of the president is conclusive as to the ex- istence of the exigency, and may be given in evidence as conclusive proof thereof, yet that the avowry is fatally defective, because it omits to aver that the fact did exist. The argument is, that the power con- fided to the president is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the court, that this objection cannot be maintained. When the president exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown ; and, a fortiori, this presumption ought to be favourably applied to the chief magistrate of the union. It is not necessary to aver, that the act which he may rightfully do, was so done. If the fact of the existence of the exigency were averred, it would be traversable, and of course might be passed upon by a jury; and thus the legality of the orders of the president would depend, not on his own judgment of the facts, but upon the finding of those facts upon the proofs submitted to a jury. This view of the objection is precisely the sattie which was acted upon by the supreme court of New Yort, in the case already referred to, and, in the opinion of this court, with entire legal correctness. Another objection is, that the orders of the president are not set forth; nor is it averred that he issued any orders, but only that the governor of New York called out the militia upon the requisition of the president. The objection, so far as it proceeds upon a supposed difference between a requisition and an order, is untenable ; for a requisition calling forth the militia is, in legal intendment, an order, and must be so interpreted *49n *'" ^^'^ avowry. The majority of the court understood and acted J upon this sense, which is one of the acknowledged senses of the word, in Houston v. Moore, 5 Wheat. Rep. I, 4 Cond. Rep. 589. It was unnecessary to set forth the orders of the president at large ; it was quite sufficient to state that the call was in obedience to them. No private citizen is presumed to be conversant of the particulars of those orders; and if he were, he is not bound to set them fortlj in hac verba. The next objection is, that it does not sufficiently appear in the avowry that the court-martial was a lawfully constituted court-martial, having jurisdiction of the offence at the time of passing its sentence against the original plaintiff. Various grounds have been assigned in support of this objection. In the first place, it is said, that the original plaintiff was never employed in the service of the United States, but refused to enter that service, and that, consequently, he was not liable to the rules and articles of war, or to be tried for the offence by any court-martial organized under the authority of the United States. The case of Houston v. Moore, 5 Wheat. Rep. 1, 4 Cond. Rep. 589, affords a conclusive answer to this suggestion. It was decided in that case, that although a militia-man, 346 JANUARY TERM, 1827. 421 [Martin -u. Mott.] who refused to obey the orders of the president calling him into the pub- lic service, was not, in the sense of the act of 1795, " employed in the service of the United States" so as to be subject to the rules and articles of war ; yet that he was liable to be tried for the offence under the fifth section of the same act, by a court-martial called under the authority of the United States. The great doubt in that case was, whether the delinquent was liable to be tried for the offence by a court-martial organized under state authority. In the next place, it is said, the court-martial was not composed of the proper number of officers required by law. In order to understand the force of this objection, it is necessary to advert to the terms of the act of 1795, and the rules and articles of war. The act of 1795, sec. 5, provides, " that every officer, non-commissioned officer, or private of the militia, who shall fail to obey the orders of the president of the United States, &c., shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court-mar- tial." And it further provides, sec. 6, "that courts-martial for the trial of militia shall be composed of militia-officers only." These are the only provisions in the act on this subject. It is not stated by whom the courts-martial shall be called, nor in what manner, nor of what number they shall be composed. But the court is referred to the sixty-fourth and sixty-fifth of the rules and articles of war, enacted by the act of April 10th, 1806, ch. 20, which provide, " that general courts-martial may *consist of any number of commissioned officers from five [-#499 to thirteen inclusively ; but they shall not consist of less than '- thirteen, where that number can be convened without manifest injury to the service :" and that " any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial when necessary." Supposing these clauses applicable to the court-martial in question, it is very clear, that the act is merely directory to the officer appointing the court, and that his decision as to the number which can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. But the present avowry goes further, and alleges, not only that the court-martial was appointed by a general officer commanding an army, that it was composed of militia officers, naming them, but it goes on to assign the reason why a number short of thirteen composed the court, in the very terms of the sixty-fourth article; and the truth of this allegation is admitted by' the demurrer. Tried, therefore, by the very test which has been resorted to in support of the objection, it utterly fails. But, in strictness of law, the propriety of this resort may admit of question. The rules and articles of war, by the very terms of the sta- tute of 1806, are those " by which the armies of the United States shall be governed;" and the act of 1795 has only provided, "that the mi- litia employed in the service of the United States (not the militia or- dered into the service of the United States) shall be subject to the same rules and articles of war as the troops of the United States ;" and this is, in substance, re-enacted by the ninety-seventh of the rules and arti- cles of war. It is not, therefore, a;dmitted, that any express authority is given by either statute, that such a court-martial as is contemplated for the trial of delinquents under the fifth section of the act of 1795, is 347 422 SUPREME COURT. [Martin v. Mott.] to be composed of the same number of officers, organized in the same manner as these rules and articles contemplate for persons in actual service. If any resort is to be had to them, it can only be to guide the discretion of the officer ordering the court, as matter of usage, and not as matter of positive institution. If, then, there be no mode pointed out for the formation of the court-martial in these cases, it may be asked, in what manner is such court to be appointed ? The answer is, according to the general usage of the military service, or what may not unfitly be called the customary military law. It is by the same law that courts-martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of posi- tive enactments. Upon any other principle, courts-martial would be left without any adequate means to exercise the authority confided to *42^T *^'^^™ ■ fo"" there could scarcely be framed a positive code to -• provide for the infinite variety of incidents applicable to them. The act of the I8th of April, 1814, eh. 141, which expired at the end of the late war, was, in a great measure, intended to obviate diffi- culties arising from the imperfection of the provisions of the act of 1795, and especially to aid courts-martial in exercising jurisdiction over cases like the present. But whatever may have been the legislative inten- tion, its terms do not extend to the declaration of the number of which such courts-martial shall be composed. The first section provides, " that courts-martial to be composed of militia officers alone, for the trial of militia drafted, detached, and called forth, (not or called forth,) for the service of the United States, whether acting in conjunction with the regular forces or otherwise, shall, when necessary, be appointed, held, and conducted, in the manner prescribed by the rules and articles of war, for appointing, holding, and conducting courts-martial for the trial of delinquents in the army of the United States." This language is obviously confined to the militia in the actual service of the United States, and does not extend to such as are drafted and refuse to obey the call. So that the court are driven back to the act of 1795, as the legitimate source for the ascertainment of the organization and jurisdic- tion of the court-martial in the present case. And we are of opinion, that nothing appears on the face of the avowry to lead to any doubt that it was a legal court-martial, organized according to military usage, and entitled to take cognisance of the delinquencies stated in the avowry. This view of the case affords an answer to another objection which has been urged at the bar, viz., that the sentence has not been approved by the commanding officer, in the manner pointed out in the sixty-fifth of the rules and articles of war. That article cannot, for the reasons already stated, be drawn in aid of the argument; and the avowry itself shows that the sentence has been approved by the president of the United States, who is the commander-in-chief, and that there was not any other officer of equal grade with the major-generals by whom the court-martial had been organized and continued within the military dis- trict, by whom the same could be approved. If, therefore, an approval of the sentence were necessary, that approval has been given by the highest, and indeed only, military authority competent to give it. But it is by no means clear that the act of 1795 meant to require any approval of the sentences imposing fines for delinquencies of this 348 JANUARY TERM, 1827. 423 [Martin u. Mott.] nature. The act does not require it either expressly or by necessary implication. It directs, section seven, that the fines assessed shall bj certified by the presiding officer of the court-martial to the marshal, *for him to levy the same, without referring to any prior act to t^ma be done, to give validity to the sentences. The natural inference <- from such an omission is, that the legislature did not intend, in cases of this subordinate nature, to require any farther sanction of the sen- tences. And if such an approval is to be deemed essential, it must be upon the general military usage, and not from positive institution. Either way, we think that all has been done, which the act required. Another objection to the proceedings of the court-martial is, that they took place, and the sentence was given, three years and more after the war was concluded, and in a time of profound peace. But the opinion of this court is, that a court-martial, regularly called under the act of 1795, does not expire with the end of a war then existing, nor is its jurisdiction to try these offences in any shape dependent upon the fact of war or peace. The act of 1795 is not confined in its operation to cases of refusal to obey the orders of the president in times of public war. On the contrary, that act authorizes the president to call forth the militia to suppress insurrections, and to enforce the laws of the United States, in times of peace. And courts-martial are, under the fifth section of the act, entitled to take cognisance of, and to punish delinquencies in such cases, as well as in cases where the object is to repel invasion in times of war. It would be a strained construction of the act, to limit the authority of the court to the mere time of the existence of the particular exigency, when it might be thereby unable to take cognisance of, and decide upon a single offence. It is sufficient for us to say, that there is no such limitation in the act itself. The next objection to the avowry is, that the certificate of the presi- dent of the court-martial is materially variant from the sentence itself, as set forth in a prior allegati9n. The sentence as there set forth is, " and thereupon the said general court-martial imposed the sum of ninety-six dollars as a fine on the said Jacob, for having thus failed, neglected, and refused to rendezvous and. enter in the service of the United States of America, when thereto required as aforesaid." The certificate adds, " and that the said Jacob E. Mott was sentenced by the said general court-martial, on failure of the payment of said fine imposed on him, to twelve months' imprisonment." It is material to state that the averment does not purport to set forth the sentence in haec verba; nor was it necessary in this avowry to allege any thing more than that part of the sentence which imposed the fine, since that was the sole ground of the justification of taking the goods and chat- tels in controversy. But there is nothing repugnant in this averment to that which relates to the certificate. The latter properly adds the fact which respects the imprisonment, because the certificate constitutes *the warrant to the marshal for his proceedings. The act of rj^^oti 1795 expressly declares that the delinquents " shall be liable to L be imprisoned by a like sentence, on failure of payment of the fines adjudged against them, for one calendar month for every five dollars of such fine." If, indeed, it had been necessary to set forth the whole sentence at large, the first omission would be helped by the certainty 2E 349 425 SUPREME COURT. [Clark u. The Corporation of Washington.] of the subsequent averment. There is, then, no variance or repugnance ill these allegations ; but they may well stand together. Of the remaining causes of special demurrer, some are properly mat- ters of defence before the court-martial, and its sentence, being upon a subject within its jurisdiction, is conclusive ; and others turn upon nice- ties of pleading, to which no separate answers are deemed necessary. In general it may be said of them, that the court do not deem them well-founded objections to the avowry. Upon the whole, it is the opinion of the court that the judgment of the court for the trial of impeachments and the correction of errors ought to be reversed, and that the cause be remanded to the same court, with directions to cause a judgment to be entered upon the pleadings in favour of the avowant. Decisions relative to the militia called into the service of the United States. See notes, 4 Cond. Rep. 599. , Clark V. The Mayor, Aldermen, and Common Council of the City of Washington. 12 Wheaton's Reports, 40. Municipal corporations, acting within the limits of the powers conferred upon them by the legislature in the exercise of a special franchise granted to them, and the performance of a special duty imposed upon them, are responsible for the acts and contracts of their- agents, duly appointed and authorized, within the scope of the authority of such agents, in the same manner as other corporations and private individuals are responsible on their promises, ex- press and implied. Where, by the charter granted by congress to the city of Washington, the corporation was impowered " to authorize the drawing of lotteries," for effecting certain improvements in the ._-- city, and upon certain terms and conditions: held, that the corporation *was liable 4.*OJ to the holder of a ticket in such a lottery for a prize drawn against its number, although the managers appointed by the corporation to superintend such lottery were im- powered to sell, and had sold, the entire lottery to a lottery dealer for a gross sum, who was, by his agreement with them, to execute the details of the scheme as to the sale of the tickets, the drawings, and the payment of the prizes. [See note at the end of the case.] It seems that the power granted in the charter " to authorize the drawing of lotteries" cannot be exercised so as to discharge the corporation from its liability, cither by granting the lot- tery, or selling the privilege to others, or in any other manner; but the lotteries to be author- ized by the corporation must be drawn under its superintendence, for its own account, and on its own responsibility. ERROR to the circuit court for the district of Columbia. This was an action of assumpsit, brought by the plaintiff in error to recover of the defendants the amount of a prize drawn in a lottery called " the fifth class of the national lottery." A verdict was found for the plaintiff in the court below, subject to the opinion of the court, 6n a case agreed, on which judgment was rendered for the defendants, and the cause was brought by writ of error to this court. By the constitution of the United States, congress has power to ex- 350 JANUARY TERM, 1827. 426 [Clark u. The Corporation of Washington.] ercise exclusive legislation in all cases whatsoever over the district, which, being ceded by particular states, may become the seat of the government of the union. The district of Columbia having been ceded for that purpose, congress passed an act, creating a municipal corporation for the city of Washington, and, by the act of the 4th May, 1812, for amending the charter, gave the corporation " full power and authority to authorize tiie drawing of lotteries for effecting any import- ant improvement in the city, which the ordinary funds or revenue thereof will not accomplish ; provided that the amount to be raised in each year shall not exceed the sum of ten thousand dollars ; and pro- vided also that the object for which the money is intended to be raised shall be first submitted to the president of the United States, and shall be approved by him." For the purpose of carrying this power into execution, ten successive resolutions were passed by the corporation, the first of which was approved by the president of the United States on the 23d of November, 1812, and the last on the 21st of May, 1821, each of them for raising ten thousand dollars by lottery, for the several objects, of endowing two public school-houses, on the Lancasterian system; of building a workhouse and penitentiary, and a town-house, or city hall. On the 24th of July, 1815, the corporation passed an ordinance for car- rying into effect the first three of the above resolutions, and appointed certain managers by name, viz., John Davidson, Thomas H. Gillis, An- drew Way, Jun., Moses Young, William Brent, Daniel Rapine, and Sanvuel N. Smallwood, whose duty it was made to agree on and pro- pose *a scheme or schemes of a lottery or lotteries, to raise the r^AQn sum of thirty thousand dollars, (clear of all expenses,) and to '■ sell and dispose of the tickets therein to the best advantage, with the least possible delay, and diligently to attend the drawing of the said lottery or lotteries, which should be in the city of Washington ; and within sixty days after the drawings of the same, respectively, (the time of each drawing not to exceed two years,) to pay and satisfy the fortunate adventurers for prizes; and, within seventy days, to pay over the balance, after deducting all necessary expenses, into the city treasury; and giving to said managers full power and authority to appoint all necessary agents, clerks, and servants, to do and perform all such acts and things as might be necessary to carry into effect the provisions of the ordinance. Another ordinance was passed on the 17th of November, 1818, for the purpose of carrying into effect the fourth, fifth, sixth, and seventh, of the aforesaid resolutions, by which, (inter alia,) the mayor was authorized to appoint seven citizens to act as managers for the purpose aforesaid, whose duty was declared to be to agree on a scheme of a lottery to raise the sum of forty thousand dollars, (clear of expenses,) and to sell the said lottery, or dispose of the tickets therein to the best advantage, with the least possible delay, and diligently to attend the drawing of the said lottery, which should be in the city of Washington: provided, however, that if the said managers, or a majority of them, should sell the said lottery, the indi- vidual or individuals purchasing the same, should have the power of making a schema for the aforesaid lottery, and within sixty days after the drawing, (the time of drawing not to exceed one year,) to pay and satisfy the fortunate adventurers for prizes ; and within seventy days, to pay over the balance, after deducting all necessary expenses, into 351 427 SUPREME COURT. [Clark V. The Corporation of Washington.] the city treasury, with the like power and authority to the managers, as in the former act, to appoint ail necessary agents, clerks, and ser- vants, &c. The mayor appointed, under the authority of the last- mentioned act, seven citizens to act as managers for the purposes afore- said, the same as those appointed by name in the former act, ex6ept that, in the last, Roger C. Weightman takes the place of Samuel N. Smallwood. On the 25th of October, 1819, another ordinance was passed, by which the managers appointed under the ordinance of 1815, were im- powered to sell and dispose of the lotteries to which that ordinance refers, or so much thereof as yet remains to be drawn, in such classes, and on such terms and conditions, as should appear to them right and expedient. In pursuance of the ordinances of 1815 and 1819, the managers sold to David Gillespie, of New York, a lottery called the "fifth class of the *4281 *S''^"*^ national lottery," for the sum of ten thousand dollars, to -■ be paid before the commencement of the drawing thereof; and the following articles of agreement were entered into for that purpose: " Memorandum of an agreement, made and entered into this 14th day of May, 1821, between Roger C. Weightman, John Davidson, Thomas H. Gillis, Andrew Way, Jun., Moses Young, William Brent, and Daniel Rapine, as managers of the lotteries authorized by an act of the board of aldermen and board of common council of the city of Washington, for the purposes therein mentioned, approved July 24, 1815, of the one part, and David Gillespie, of the city of New York, in the state of New York, of the other part : Whereas, by an act of the board of aldermen and board of common council of the said city of Washington, approved October 25, 1819, supplementary to the act aforesaid, the said managers are authorized and impowered to sell and dispose of the said lotteries, in such classes, and on such terms and conditions, as shall appear to them right and expedient, and according to the true intent and meaning of the act aforesaid ; and that the said managers, for the purpose of raising the sum of ten thousand dollars, in conformity with the provisions of the said first-mentioned act, and in pursuance of the power and authority in them vested by the said supplementary act, have agreed to sell and dispose of, to the said David Gillespie, a lottery, denominated the fifth class of the grand national lottery, to be drawn according to the scheme hereunto annexed ; and the said David Gillespie, in consideration thereof, hereby agrees to pay to the said managers the sum of ten thousand dollars, before the com- mencement of the drawing the said lottery, or class, at his own proper cost, charge, and expense ; to pay and defray all and all manner of costs, charges, and expenses of the said lottery, or class, excepting the expense of drawing the same, and to draw the same in the city of Washington, in the presence of the said managers, and to finish and conclude the said drawing within two years from the date hereof, and to pay all the prizes within sixty days from the completion of the staid drawing. It is further understood and agreed, by and between the said parties, that the said David Gillespie is to provide, at his own cost and expense, two competent clerks, to assist in the drawing of the said lottery, or class; and to execute and deliver, before the commence ment of the drawing of the said lottery, or class, and within thirty days 352 JANUARY TERM, 1827. 428 [Clark V. The Corporation of Washington.] from the date hereof, to the said managers, a bond, with such security as may be approved by them, in the penal sum of thirty-five thousand dollars, conditioned for the true, fair, and faithful drawing of the said lottery, or class, and according to the said scheme ; for the punctual payment of all prizes, and for conducting the said lottery or class fairly *and honestly, and according to this agreement, and the true intent r^Ann and meaning of the said acts of the said board of aldermen and L board of common council." The bond with security, as required by the above agreement, was given by Gillespie on the 28th of May, 1821. On the 22d of the same month, an ordinance of the corporation was passed, authorizing the managers to appoint a president, whose duty it should be, in addition to the duties imposed by the ordinances of 1815 and 1819, to sign all contracts with the concurrence of a majority of the managers, and to sign all the lottery tickets, in every scheme or schemes sold by them. The second section of the ordinance allowed each of the managers of the city lotteries three dollars each day he had been, or should be employed ; and the seventh section enacts that this compensation, "except for the class now contracted for," should be provided for and paid out of the proceeds of lotteries thereafter con- tracted for. Under this authority, Thomas H. Gillis was appointed president, ivho signed the following ticket, number 2929, on which the suit was jrought, and which was endorsed, " Undrawn twenty-ninth day over. D. Gillespie, per J. James." The ticket was purchased by the plaintiff, Tom an agent of Gillespie, at Richmond, Virginia, and drew the prize )f one hundred thousand dollars, in the fifth class of the lottery. " National Lottery, Number 2929. $100,000 highest prize. William Brent, John Davidson, Thomas H. Gillis, Andrew Way, Jun., Moses i?^oung, Daniel Rapine, R. C. Weightman, managers. Thig ticket will jntitle the possessor to such prize as may be drawn to its number, if lemanded within twelve months after the completion of the drawing: subject to a deduction of fifteen per cent. Payable sixty days after ;he drawing is finished. Washington city, February, 1821. Thomas H. Gillis, Manager. By authority of congress." In the margin, on )ne side — " Fifth class." On the other, " For erecting two public ichoolhouses, a penitentiary, and town hall." The drawing of the lottery was advertised in two newspapers printed n the city of Washington; in the National Intelligencer from the 18th )f May, 1821, and in the Washington City Gazette from the 17th of Tuly, 1821, until the completion of the lottery. These advertisements ixhibited the scheme agreed upon between the managers and Gillespie, md annexed to their contract, gave notice of the time when the draw- ng would take place, of the number of days to be employed in the Irawings, and that they would be completed as soon as possible, under :he superintendence of the managers, whose names were annexed. To ;ach of these advertisements was appended an advertisement signed '■by Gillespie as " agent for the managers," for the sale of tickets r^^ori it "his "Fortunate office, Pennsylvania Avenue, Washington '- I!ity." The lottery was drawn in pursuance of the advertisements, ind the managers superintended the drawing. In its progress a post- lonement took place ; and an advertisement appeared, purporting to be Vol. VI.— 45 2e2 ' 353 ;430 SUPREME COURT. [Clark V. The Corporation of Washington.] signed by three of the managers, giving notice of the postponement, and its cause. Another advertisement soon afterwards followed, pur- porting to be signed by the president, by order of the board, giving notice when the drawing would recommence. As soon as the scheme was agreed on, all the tickets, amounting to 50,000 in number, were delivered by the managers to Gillespie, some of them signed, and others unsigned, by the president, the latter of which it was necessary to take to him to be signed before they could be sold. Some time after the drawing commenced, the president refused to sign tickets unless an equivalent in prize tickets, either paid or taken in by Gillespie, or drawn on hand, or unless the notes of individuals which Gillespie had taken, payable to himself, for tickets sold, were depo- sited with them. When Gillespie's clerk and agent, Webb,presented tick- ets to be signed, he was obliged, at the same time, to deposit such prize tickets or promissory notes ; and, on some occasions, when tickets were called for, and wanted, the managers refused to sign the same for want of such equivalent. The amount of the prize tickets so deposited with the managers was about one hundred and forty-one thousand seven hundred and seventy-nine dollars. The managers, on such occasions, objected to trusting Gillespie with the disposal of the tickets much beyond the penalty of his bond, and Webb, who was a witness in the cause, understood, from the conversations and transactions between the parties at the time, that this precaution arose from doubts which had been circulated respecting Gillespie's solvency. The Attorney-General and Mr. Webster, for the plaintiff, cited : 15 Johns. Rep. 1. 7 Crunch, 299, 2 Cond. Rep. 501. 2 Tuunt. 595. 12 Ves. 352. 7 Mass. Rep. 169. 16 East's Rep. 6. ZMass. Rep. 364. 2 Liverm. Ag. 198. 1 Bro. Ch. 469. 18 Mass. Rep. 372. 10 Mass. Rep. 397. 15 Mass. Rep. 125. Fowle v. Corporation of Alexandria, 11 Wheat. Rep. 320, 6 Cond. Rep. 328. 15 East's Rep. 408. 3 P. Wms. 423. Covop, 86. , 4 Taunt. 576, in note. 2 Vem. 146. Paley, Ag. 143—145. 3 Stark. Ev. 1621. Mr. Jones, for the defendants. Mr. Chief Justice Marshall delivered the opinion of the court. This cause depends on the liability of the corporation to pay the ticket on which the suit was instituted. In considering this question, that *4'?n *P^''^ °^ *^® charter which contains a grant of power on the -" subject of lotteries, the ordinances of the corporate body in exe- cution of the power,and the proceedings of its agents, must be reviewed. The charter enacts, " that the corporation shall have full power and authority" " to authorize the drawing of lotteries, for effecting any im- portant improvement in the city, which the ordinary funds or revenue thereof will not accomplish; provided, that the amount to be raised in each year shall not exceed the sum of ten thousand dollars. And pro- vided also, that the object for which the money is intended to be raised, shall be first submitted to the president of the United States, and shall be approved of by him." Some doubt has been expressed whether this power is to be exercised by drawing the lottery on account, and at the risk of the corporation, or by selling the privilege to individuals, and authorizing them to draw t on their own account. This doubt is founded on the word " author- 354 JANUARY TERM, 1827. 431 [Clark a. The Corporation of Washington.] ize." Congress, we are told, has not granted the power to draw lotte- ries, but to " authorize" their being drawn. We cannot admit the correctness of this criticism. We do not admit the justice of the construction, which denies to the corporation the power of causing the lottery to be drawn on its own account. A corpo- ration aggregate can legislate within its prescribed limits, but can carry its laws into execution only by its agents. Any legislative act directing a lottery to be drawn, is literally an act "to authorize the drawing of lotteries." The object for which the lottery may be authorized, is " any import- ant improvement in the city." Its produce is to come in aid of the or- dinary funds or revenue thereof; and " the amount to be raised in each year shall not exceed the sum of ten thousand dollars." The language of the charter is not that the sum to be brought into the treasury of the city shall not exceed the sum of ten thousand dollars, but that " the amount to be raised shall not exceed that sum." This language, it is admitted, comprehends the net proceeds of the lottery, but it compre- hends all those net proceeds, and does not allow a partition of profit, so as to retain ten thousand dollars for the treasury, and reserve a residue for others. The single object, for which the lottery can be drawn, is " any important improvement in the city," not the emolument of indi- viduals. The motive with congress for this restriction on the amount, is, not to limit the sum to Come into the city treasury, but to limit the extent of gaming, which the corporation may authorize. Congress must have perceived, that to bring ten thousand dollars into the trea- sury, either " the amount raised must exceed that sum," or the lottery *must be drawn on account of the city ; for no man will pur- [-#^09 chase a lottery from which he can make nothing. •- The counsel of the plaintiff in error have remarked, and the remark is certainly entitled to attention, that, in describing the power, congress has used no words indicating the idea, that the corporation might grant or sell lotteries. " To authorize the drawing of lotteries," is, as has been said, an appropriate term for a corporate act, instituting a lottery for the benefit of the city ; but if the granting a lottery to others, or a sale of the privilege to others, had been in the mind of congress, it is to be presumed that some words would have been used, indicating the idea. There is great weight, too, in the argument, that it is a trust, and an important trust, confided to the corporation itself, for the purpose of " effecting important improvements in the city," and ought, therefore, to be executed under the immediate authority and inspection of the corporation. It is reasonable to suppose that congress, when granting a power to authorize gaming, would feel some solicitude respecting the fairness with which the power should be used ; and would take as many precautions against its abuse, as was compatible with its beneficial ex- ercise. Accordingly, we find a limitation on the amount to be raised, and on the object for which the lottery may be authorized. It is to be for " any important improvement in the city, which the ordinary funds or revenue thereof will not accomplish ;" and is subjected to the judgment of the president of the United States. The power thus cautiously granted, is deposited with the corporation itself, without an indication that it is assignable. It is to be exercised, like other corporate powers, by the 355 432 SUPREME COURT. [Clark V. The Corporation of Washington.] agents of the corporation, under its control. While it remains where congress has placed it, the character of the corporation affords some security against its abuse; some security that no other mischief will result from it, than is inseparable from the thing itself. But if the ma- nagement, control, and responsibility, may be transferred to any adven- turer who will purchase, all the security for fairness, which is furnished by character and responsibility, is lost. We think, then, that the most obvious, if not the exclusive construc- tion of the charter, is, that the lotteries to be authorized by the corpora- tion, are to be drawn under its superintendence and on its own account. We will next advert to the measures which have been adopted for car- rying this power into execution. Ten successive resolutions were passed, the first approved on the 23d of November, 1812, and the last on the 21st of May, 1821, each of them for raising the sum of ten thousand dollars, by lottery, for particular improvements mentioned in the resolution. *4S^1 *'^^^ ordinance of the 24th of July, 1815, which was passed for J carrying the three first of these resolutions into effect, contem- plates and authorizes lotteries to be drawn entirely under the manage- ment, for the benefit, and on the responsibility of the corporation. Seven managers are appointed by the ordinance ; and they, or a ma- jority, are authorized to employ agents, fill up vacancies in their own body, and to do every act which may be necessary for carrying its provisions into effect. The ordinance passed on the 17th of November, 1818, for carrying the fourth, fifth, sixth, and seventh resolutions into effect, authorizes the mayor to appoint seven managers, whose duty it was to agree on a scheme, to sell the said lottery, or dispose of the tickets to the best ad- vantage. A proviso is inserted, that, should the said lottery be sold, the purchasers may make the scheme ; but the ordinance enacts generally, (and the enactrnent makes no distinction between a sale of the lottery itself and a disposition of the tickets,) that it shall be the duty of the managers to attend diligently to the drawing of the lottery, and to pay the fortunate adventurers for prizes drawn by them. The ordinance, however, adds the farther duty of paying over the.balance, after deduct- ing all necessary expenses, into the city treasury. From this it has been inferred that these provisions are made for the contingency that the tickets should be disposed of for the benefit of the city, and are entirely inapplicable to the contingency of an entire sale. Certainly, in the event of an entire sale, the balance, after deducting all necessary expenses, would not be payable into the treasury, unless we suppose it to mean the balance of the sum for which the lottery might be sold. But this is the only part of the clause which is inapplicable to a lottery sold out and drawn for the benefit of the purchaser. In October, 1819, the managers appointed under the act of 1815 were impowered to sell and dispose of the lotteries to which that act refers, or so much thereof as yet remains to be drawn, in such classes, and on such terms and conditions, as shall appear to them right and expedient. The duty of the managers to superintend the drawing and to pay the prizes is not changed by this act, unless the mere power to sell implies such change. The managers sold to David Gillespie, of New York, in pursuance of 356 JANUARY TERM, 1827. 433 [Clark V. The Corporation of Washington.] the acts of 1815 and 1819, a lottery denominated the fifth class of the grand national lottery, for the sum of ten thousand dpUars, to be paid before the commencement of the drawing the said lottery or class ; and articles of agreement, in pursuance thereof, were executed on the 14th day of May, 1821. The ticket held by the plaintiff is in this class. On the 22d of the same month, an ordinance was passed authorizing the managers to appoint a president, whose duty it should be, in addi- tion *to the duties imposed by the acts of 1815 and 1819, to sign r^AOA all contracts, with the concurrence of a majority of the said ma- L nagers, and to sign all the lottery tickets in every scheme or schemes sold by them. This ordinance recognises the duties prescribed by the acts of 1815 and 1819. Its second section allows each of the managers of the city lotteries three dollars for each day he has been or shall be employed ; and the seventh section enacts that this compensation, " except for the class now contracted for," shall be provided for and paid out of the proceeds of lotteries hereafter contracted for. This act is understood to recognise it as a part of the duty of the managers to continue their superintendence of the drawing of the very class which had been sold, and which comprehended the ticket that drew the prize for which this suit is brought. The defendant has excepted to the admissibility as well as sufficiency of the testimony offered by the plaintiff in the circuit court, and the objection is made in general terms. We presume, however, that it cannot apply to the charter, or to the resolutions and ordinances of the corporation. Nor do we suppose that any exception was intended to be made to the testimony which establishes the ownership of the tickets, or to the admissibility of the deposition of Mr. Webb. The first docu- ment on which a question can arise is the ticket itself. Is this admis- sible in a suit against the corporation 1 In considering this question, we must inquire into the connection be- tween the ostensible managers and the corporation. The persons who were held out as managers to superintend the drawing of the lottery comprehending this ticket, were, with one excep- tion, the same persons who were appointed in the ordinance of 1815 as managers for the lotteries established by that act. The name of R. C. Weightman is substituted for that of S. N. Smallwood. No other change appears. It is in proof that S. N. Smallwood was elected mayor; and as the managers have, by the ordinance, a right to fill up vacancies in their own body, their acting uniformly with R. C. Weight- man is a proof that they had chosen him to fill the vacancy made by Mr. Smallwood. , But it is contended that this lottery was drawn under the act of 1818, and there is no proof that the individuals who appeared and acted as managers had any authority under that act. There is undoubtedly some confusion in this part of the case, and there is not much difficulty in ascribing it to its real cause. The mayor was authorized by the ordinance of 1818 to appoint managers to carry that act into execution, and the probability is that he appointed the *persons who were in office under the appointment of the cor- r^Anx poration. The fitness of this proceeding renders it probable ; L and the subsequent proceedings of the corporation itself, turn this 357 435 SUPREME COURT. [Clark V. The Corporation of Washington.] probability almost into certainty. In a case where written evidence of appointment is not in the power of the plaintiff, if indeed it exists, circumstances must be relied on to prove the fact, should it be deemed necessary. The act of 1821 takes no notice of any appointment under the act of 1818, and makes it the duty of the managers, created under the act of 1815, to elect a president to sign all contracts, " and to sign all the lottery tickets, in every scheme or schemes sold by the said managers." Class No. 5, was then sold by these managers. Lotteries, under seven resolutions, to raise the sum of seventy thousand dollars, were either sold, or for sale, either in mass or in detail, under the acts of 1815, 1818, and 1819. The language of this ordinance appears to extend to them all ; and if it does, certainly admits the authority of the managers ap- pointed under the act of 1815, to extend to all. The seventh section of the act of 1821, which provides the fund for their compensation, ex- pressly excepts " the class now contracted for." The contract for the fifth class was executed a few days before the passage of this ordinance, and it is difficult to resist the conviction that the allusion is to this con- tract. These provisions in the ordinance of 1821 go far to establish the authority of these managers in this very case. The receipt of the pur- chase-money under this very contract, is also a strong circumstance in support of the authority of those who made it. But we think the cor- poration has waived all exception to the authority of the managers, by producing and relying on their contract for the sale of this very lottery. That body defends itself from the claim of the plaintiff, by alleging that their managers sold this lottery. Their attorney produces the contract in court, and insists that it exempts his clients from all liability. Can he in the same cause deny the authority of those who made it ? We think the connexion between the managers and the corporation is established beyond controversy. If the persons who made this contract, are the persons appointed under the authority of the corporation, as managers for class No. 5, no doubt exists whether the ticket has emanated from them. The ordi- nance of the 21st of May, 1821, authorizes them to appoint a president from their own body, whose duty it shall be " to sign all the lottery tickets in every scheme or schemes sold by the said managers." The scheme for the fifth class was annexed to the agreement between Gillespie and the managers, and has been produced in court with it. Mr. Webb proves that the ticket 2929, on which this suit was brought, *4^fi1 *^^^ signed by T. H. Gillis, whose name is subscribed to it ; J and that T. H. Gillis was at that time president of the board of managers. It is then satisfactorily proved that the ticket was issued and sold under the authority of the corporation, and was consequently admissible in a suit brought against that body. The remaining inquiry is, does it bind the defendants to pay the prize it has drawn in the lottery? Had the manager^, instead of selling the whole scheme in mass, sold the tickets iq the usual manner, and received the purchase-money of the several tickets, instead of a sum in gross, for the use of the city, this question could not have arisen. No person would have denied the lia- bility of the corporation. The sole inquiry then is, whether the agree- ment of the 14th of May, 1821, has discharged this liability. 358 JANUARY TERM, 1827. 436 [Clark V. The Corporatiun ef Washington.] If the exposition of the charter in the early part of this opinion be correct, this question is answered. If the corporate body was not im- powered to vest in an individual the independent right of drawing lot- teries for himself, and on his own responsibility, uncontrolled by the city government, then the agreement with Gillespie can operate only as a sale of the profits for a given sum, leaving the responsibility of the cor- poration as if that agreement had never been made. The contract would be between the corporation and the ticket purchaser ; and, al- though the price of the ticket was paid to Gillespie, yet the corporation had consented that he should receive it for the purpose of performing their engagements to such ticket holders as should draw prizes, and had consented to receive from him ten thousand dollars, as full com- pensation for that portion of it which would remain after satisfying those engagements. If the charter did grant the power to the corporation which is now claimed, the whole transaction must be considered, in order to determine its actual character. We must inquire whether the corporation has so acted as to divest itself entirely of all connection with, control over, and responsibility for, this lottery, and substituted the purchaser in their place. In its origin, the lottery was a city lottery. It was to be managed by persons appointed by the city, drawn under their superintendence, and, so far as the public was informed, for the benefit, and on the responsi- bility of the city. Tickets were prepared under the authority of the corporation, bearing on their face the city improvements for which the lottery was to be drawn, the names of the managers appointed by the city, and the words "national lottery," and "by authority of congress." Before these tickets were disposed of in the usual way, the managers entered into an agreement with David Gillespie, to sell him a lottery denominated the fifth class of the grand national lottery, to be drawn ac- cording *to the scheme annexed, at the costs of the said Gillespie, r#4q7 except the expense of drawing the same. 1- The stipulations of this contract show that it was not intended to- dissolve the connection between the city and the lottery, and to give the absolute property in it, and control over it, to Gillespie; nor to exhibit him to the world as its owner, with whom alone the purchasers of tickets were to contract, and to whom the fortunate adventurers were to look for the payment of their prizes. He engages to draw the lottery in the city of Washington, in the presence of the managers; to finish the drawing within two years from the date of the contract; to pay all the prizes within sixty days from its completion; to provide two clerks to assist at the drawing ; and to execute, within thirty days, and before the drawing should commence, a bond to the managers, with such security as they should approve, in the penal sum of thirty- five thousand dollars, conditioned for the faithful drawing of the lottery according to the scheme, for the punctual payment of the prizes, and' for conducting the lottery fairly and honestly, according to the scheme, and according to the true intent and meaning of the acts of the alder- men and board of common council. A bond was executed in pursuance of this agreement. These provisions are in the spirit of a contract made to secure the city from the hazard of a continuing responsibility ; a responsibility 359 487 SUPREME COURT. [Clark. V. The Corporation of Wasliingtori.] which they were induced to continue by the consideration of the ten thousand dollars paid by Gillespie. Why else stipulate that the lottery should be drawn in the city ? Why that it should be completed within a limited time, and drawn in the presence of the managers appointed by the corporation 1 Why that. the prizes should be paid? and why take a bond to the managers, conditioned, among other things, for their payment ? Had the corporation felt no farther interest in the lottery, the purchaser might have been permitted to exercise his own discretion with the article be had purchased, and to appear to the world as its owner. But the nature of the case justifies the opinion that such a sale could not have been made. No purchaser could have been found who would have given ten thousand dollars for the privilege of drawing a lottery on his own account and responsibility, having no connection with the city. The probability is strong, that the aspect which the lottery still continued to bear was a necessary part of the contract, without which it would never have been made, and that these precau- tions were used to diminish the hazard of a responsibility which was unavoidably continued. We find fhe appearance of this responsibility carefully preserved by the corporation itself, and by its managers. In the ordinance of the 22d of May, 1831, it is enacted, that the tickets shall be signed by the president of their board of managers, and that *4Qoi their managers shall receive *a daily allowance for attending -■ the drawing of the lottery. The tickets were signed in con- formity with this ordinance. The manner in which the lottery was advertised, confirms the opinion that the contract of sale was made with a view to tlie con- tinuing the responsibility of the city. Exception is taken to the admis- sion of these advertisements, and we will not affirm that their appear- ance in the city papers, one of which was published by a member of the corporate body, is evidence that the publication was made by authority of the managers ; but the advertisements prove the fact, that the lottery was ushered to the world in the form and character which those advertisements represent. It is proved that they were published in two papers in the city, in the National Intelligencer from the 18th of May, 1821, and in the Washington City Gazette from the 17th of July, 1821, until the completion of the lottery. These advertisements exhibited the scheme which was agreed on between the managers and Gillespie, which was annexed to their contract ; gives notice of the time when the drawing would take place ; of the number of days to be employed in the dra>\'ings, and that they would be completed as soon as possible, under the superintendence of the managers. To this advertisement the names of the managers are annexed. The lottery is drawn in pursuance of it, and the managers superintend the drawing. In its progress, a postponement takes place. An advertisement pur- porting to be signed by three of the managers appears, giving notice of this postponement, and of its cause. Another advertisement soon follows, purporting to be signed by the president, by order of the board, giving notice when the drawing would recommence. It does recommence under the superintendence of the managers. It is not, we think, within the compass of human credulity, to be- lieve that the managers did not see these advertisements, or did not believe that they would be received by the public 360 JANUARY TERM, 1827. 438 ' [Clark V. The Corporation of Washington.] by their names. Not to contradict them was to sanction them. To appear in pursuance of them, and superintend the drawings of which they had given notice, was to adopt them. It is not lo be believed that this concurrence of circumstances, all tending to assure the public that these advertisements were published by authority of the managers, could have been produced by accident. To sit daily superintending the drawing of a lottery, in pursuance of notice published every day under their names, verifies that publication, and must be considered as a ratification of it. The proceedings which took place between the managers and Gil- lespie, after the contract, still farther corroborates the opinion that this continuing responsibility of the corporation which was held out to the *public, was not a fraudulent representation for the purpose of r#^qq enabling Gillespie to sell the tickets, but a representation of the L fact as then understood. It appears, from the deposition of Mr. Webb, that all the tickets, amounting to fifty thousand, were put into the possession of Gillespie; but these tickets were not vendible until signed by the president of the board of managers. Those unsigned could no more be used by him than if they had not been in his possession. As soon as the scheme was agreed on, three or four thousand tickets were signed, and after- wards tickets were occasionally signed, so as to make the additional number of seventeen thousand two hundred and eight. Why were these tickets thus withheld from him, if he had become the absolute and unconditional proprietor of them? The conduct of the managers, as disclosed in the subsequent part of Webb's deposition, will inform us. He says, that some time after the drawing of the lottery com- menced, the president of the managers refused to sign tickets, unless an equivalent in prize tickets, either paid and taken in by Gillespie, or drawn on hand, or the notes of individuals which Gillespie had taken, payable to himself, for tickets sold, were deposited with them ; and, accordingly, when the witness, as the clerk and agent of Gillespie, pre- sented tickets to be signed, he was obliged, at the same time, to deposit such prize tickets or promissory notes ; and, on some occasions, when tickets were called for, and wanted, the managers have refused to sign the same for want of such equivalent ; that the amount of such prize tickets so deposited with the managers was about the sum of one hun- dred and forty-one thousand seven hundred and seventy-nine dollars ; that the managers on such occasions objected to trusting Gillespie with the disposal of tickets much beyond the penalty of his bond, and the witness understood, from the conversations and transactions between the parties at the time, that this precaution arose from doubts which had been circulated respecting Gillespie's solvency. The whole num- ber of tickets actually signed was thirty thotisand nine hundred and sixty. This conduct of the managers is explained by the supposition that they considered the city as still responsible for prizes, but is irre- concilable with the idea of an entire transfer of responsibility to Gillespie. Such entire transfer would have entitled him to the free use of all the tickets. That the parties who made the contract so un- derstood it, would go far in its construction, were it even in the power of the corporation to transfer its responsibility. We think, then, that the contract of Mav, 1821, can be considered Vol. VI.— 46 2F ' 361 439 SUPREME COURT. [Bank of the United States v. Dandridge.] » only as a sale of the profits of the lottery, and could not, under all the circumstances of the case, affect the responsibility of the corporation. *4401 *'^^^ ticket was in fact what it purports on its face to be, a J ticket in the national lottery, by authority of congress, sold under the direction of the corporation, and signed by the person who was authorized by an act of the corporate body to sign it. It asserts that it shall entitle the possessor to such prize as may be drawn to its number ; and this is, we think, in such a case, the promise of the cor- poration, made by its authorized agent, to pay such prize. The judgment of the circuit court, then, on the verdict found in the cause, and on the case agreed, to which that verdict refers, ought to have been for the plaintiff. The judgment is tp be reversed, and the cause remanded to the circuit court, with directions to enter judgment for the plaintiff. liolieries. See notift, ante, page 163. The President, Directors, and Company of the Bank of the United States, v. Dandridge and others. 13 Wheaton's Reports, 64. In a suit brought by the president, directors and company of the Bank of the United States, upon a bond given to the bank to secure the faithful performance of the official duties of one of its cashiers, evidence of the execution of the bond, and of its approval by the board of directors, (according to the rules and regulations contained in the charter of the bank,) is admissible, notwithstanding there was no record of such approval ; and the plaintiff may prove the fact of such approval by the board, by presumptive evidence, in the same manner as such fact might be proved in the case of private persons, not acting as a corporation, or as the agents of a corporation. Where, in such a case, the cashier is duly appointed, and permitted to act in his office, for a long time, under the sanction of the directors, it is not necessary that his official bond should be accepted by the board of directors as satisfactory, according to the terms of the charter, in order to enable him to enter legally on the duties of his office, or to make his sureties re- sponsible for the non-performance of those duties. The charter and the by-laws are to be considered, in this respect, as directory to the board, and not as conditions precedent. Distinction as to proof of the acts of corporations and of private persons. Proof of the acts of aggregate corporations at the common law. Of corporations created by statute. . .-, "How far the law requires the acts of corporations to be in writing. ^^'•J Rules of evidence as to presumptions in the case of private individuals. Cases where corporate acts have been the subject of presumptions. Nature of Ihe corporation of the Bank of the United States. Distinction between an act prescribed by law to be done as a condition precedent, or only di- rectory to the officers who are to perform it. THIS cause was argued by the Attorney-General and Mr. Webster, for the plaintiffs : and by Mr. Tazewell, for the defendants. Mr. Justice Story delivered the opinion of the court. 362 JANUARY TERM, 1827. 441 [Bank of the United States v. Dandiidge.] This is a writ of error to the circuit court for the district of Virginia. The original action was debt on a bond, purporting to be signed by Dandridge, as principal, and Carter B. Page, Wilson Allen, James Brown, Jun., Thomas Taylor, Harry Heth, and Andrew Stevenson, as his sureties, and was brought jointly against all the parties. The con- dition of the bond, after reciting that Dandridge had been appointed cashier of the office of discount and deposit of the Bank of the United States at Richmond, Virginia, was, that if he should well, and truly, and faithfully discharge the duties and trust reposed in him as cashier of the said office, then the obligation to be Toid, otherwise to remain in full force and virtue. The declaration set forth the condition, and as- signed various breaches. Dandridge made no defence ; and the suit was abated as to Heth by his death. The other defendants severed in their pleas. It is not thought necessary to state the pleadings at large ; it is sufficient to state, that Stevenson and Allen pleaded, among other pleas, non _est factum generally^ and also special pleas of non est factunl, on which issues were joined ; and that all the defendants in various forms pleaded, that the instrument was not the deed of Stevenson ; and further pleaded, that the bond had never been approved, according to the pro- visions of the thirtieth ar ticle of the rules and regulations of the,^iank. Issues were also taEeii on these pleas ; and the cause came on for trial upon all the issues of fact. At the trial, evidence was offered for the purpose of establishing the due execution of the bond by the defendants, and particularly by Ste- venson and Allen, and its approval by the plaintiffs. The evidence was objected to on' behalf of the defendants, as not sufficient to be left to the jury, to infer a delivery of the bond, and the acceptance and approval thereof by the directors of the bank, according to the provisions of their charter; and the objection was sustained, the court being of opinion, that although the scroll affixed by Allen to his name, is in Virginia equivalent to a seal of wax, and although proof of the handwriting of Stevenson, and the bond being in possession of the plaintiffs, and put in *suit by them, and the introduction of Dandridge into the office r^AAC) of cashier, and his continuing to act in that office, would, in ge- L neral, be prima facie evidence to be submitted to the jury, as proof that the bond was fully executed and accepted ; yet it was not evidence of that fact, or of the obligation of the bond in this case ; because, under the act of congress, incorporating the Bank of the United States, the bond ought, to be satisfactory to the board of directors, before the cashier can legally enter on the duties of his office, and consequently before his sureties can be responsible for his non-performance of those duties ; and that the evidence in this case did not prove such accept- ance and approbation of the bond, as is required by law for its com- pletion. This opinion constitutes the subject-matter of the first bill of exceptions. Farther evidence was then offered by the plaintiffs for the same pur- pose, the particulars of which are not now necessary to be enumerated ; to which the defendants took various objections, and contended, among ather things, that the whole of the evidence, if legal, vvas not sufficient to go to the jury, upon which to infer the delivery of the paper as the act and deed of the defendants, and its acceptance and approbation by the directors of the bank, pursuant to their cliarter ; which objection 363 442 SUPREME COURT. [Bank of the United States v. Dandridge.] was sustained ; and the court excluded the whole, and every part of the said evidence from the jury, being of opinion that the board of directors keep a record of their proceedings, which record, or a copy of it, show- ing the assent of the directors to this bond, was necessary to show that such assent was given ; and if such assent had not been entered on the record of the proceedings of the said directors, the bond was ineffectual, and n6 claim in favour of the plaintiffs could be founded thereon against the defendants in these issues. This opinion of the court constitutes the subject-matter of the second bill of exceptions. It has become the duty of -this court, upon the present writ of error, to decide whether these opinions of the circuit court, or either of them, can be maintained in point of law. It is material to state, that the rejection of the evidence did not pro- ceed upon the ground that it was of a secondary nature, leaving behind, in the possession of the plaintiffs, evidence of a higher and more satis- factory, nature. On the contrary, the whole structure of the case shows, that there was in the understanding of both the parties, no record ever made of the approval or acceptance of the bond in question ; and the principal controversy was, whether it could be established by any evidence short of such record proof. The propositions maintained by the circuit court were in substance these. First, that the cashier could not legally enter upon the duties of his office, or make his sureties responsible for his non-performance of *44^1 *'-hose duties, before his official bond was accepted as salisfac- -' tory by the board of directors, according to the terms of the charter. Secondly, that such acceptance could be estabHshed only by proof drawn from the records of the board of directors ; and, if no record had been kept of such assent and acceptance, the bond was ineffectual, and no secondary evidence could be admitted to establish the fact. The last proposition will be first considered. The correctness of it, in a great measure, depends upon the soundness of the distinction taken between the acts of private persons and the acts of corporations. It is admitted, in the opinion of the circuit court, that the evidence offered would, in common cases between private persons, have been prima facie evidence to be submitted to the jury as proof that the bond was fully executed and accepted. But it is supposed that a different rule prevails in cases of corporations ; that their acts must be established by positive record proofs ; and that no presumptions can be made in their favour, of corporate assent or adoption, from other circumstances, though in respect to individuals the same circumstances would be de- cisive. The doctrine, then, is maintained from the nature of corpora- tions, as distinguished from natural persons, and from the supposed incapacity of the former to do any act not evidenced by writing, and, if done, to prove it, except by writing. Little light can be thrown on this subject by considerations drawn from corporations existing by the common law, or dependent upon pre- scription. To corporations, however erected, there are said to be cer- tain incidents attached, without any express words or authority for this purpose ; such as the power to plead and be impleaded, to purchase and alien, to make a common seal, and to pass by-laws. («) In ancient (a) Com. Digest, Franchise, F. 10, 13. 364 JANUARY TERM, 1827. 443 [Bank of the United States v. Dandridge.] times, it was held that corporations aggregate could do nothing but by deed under their common seal. But this principle must always havc' been understood with many qualifications, and seems inapplicable lo acts and votes passed by such corporations at corporate meetings. It was probably in its origin applied to aggregate corporations at the common law, and limited to such solemn proceedings as were usually evidenced under seal, and to be done by those persons who had the custody of the common seal, and had authority to bind the corporation thereby, as their permanent official agents. Be this as it may, the rule has been broken in upon, in a vast variety of cases, in modern tiuies, and cannot now, as a general proposition, be supported. Mr. Justice Bayley, in Harper v. Charlesworth, 4 Barnw. and Cresw. 515, said, " a corporation can only grant by deed; yet there are many things which *a corporation has power to do otherwise than by deed. It may r^fAA^ appoint a bailiff, and do other acts of a like nature." And it is •- now firmly established, both in England and America, that a corpora- tion may be bound by a promise, express or implied, resulting from the acts of its authorized agent, although such authority be only by virtue of a corporate vote, unaccompanied with the corporate seal. But, whatever may be the implied powers of aggregate corporations by the common law, and the modes by which those powers are to be carried into operation, corporations created by statute must depend, both for their powers and the mode of exercising them, upon the true construction of the statute itself. The doctrine of this court in Head V. The Providence Insurance Company, 2 Cranch, 127, 1 Cond. Rep. 371, on this subject, is believed to be entirely correct. It was there said by the chief justice, in delivering the opinion of the court, that, " without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the quali- ties and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorpo- rating act has made it ; to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes." In that case, the act of incorporation prescribed the mode in which contracts should be made in order to bind the corporation, which was not complied with ; and the court held that there was no binding contract, for the corporation could only act in the manner pre- scribed by law ; and when their agents do not clothe their proceedings with those solemnities which are required by the incorporating act to bind the company, they cannot be deemed as more than proposals, or preparatory negotiations. We do not perceive any thing in this doc- trine which fairly admits of controversy. But this case has been pressed upon us, at the present argument, as justifying to its full extent the reasoning of the defendants on the present occasion. The question there was not whether every corporate act must be evidenced by Writ- ing; but whether certain acts, which by law were to bind only when done and verified in a particular manner, ought to bind, although those forms were not adopted. We do not admit, as a general propositibn, that the acts of a corpo- ration, although in all other respects rightly transacted, are invalid, merely from the omission to have them reduced to writing, unless the statute creating it makes such writing indispensable as evidence, or to 2p2 365 444 SUPREME COURT. [Bank of the United ,8tates v. Dandridge.] give them an obligatory force. If the statute imposes such a re^~tl•ic- iion, it must be obeyed ; if it does not, then it remains for those \\ho assert the doctrine to establish it by the principles of the common law, #4451 *^^^ ^y decisive authorities. None such have, in our judgment, -' been produced. By the general rules of evidence, presumptions are continually made in cases of private persons of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law itself, for the purpose of strengthening the infirmity of evidence, and uphold- ing transactions intimately connected with the public peace, and the security of private property, indulges its own presumptions. It pre- sumes that every man, in his private and official character, does his duty, until the contrary is proved ; (a) it will presume that all things are rightly done, unless the circumstances of the case overturn this presumption, according to the maxim, omnia presumuntur rite et solemnitur esse acta, donee probetur in contrarium. Thus, it will presume that a man acting' in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; that, upon proof of title, matters collateral to that title shall be deemed to have been done ; as, for instance, if a grant or feoffment has been declared on, attornment will be intended, and that deeds and grants have been accepted, which are manifestly for the benefit of the party. The books on evidence abound with instances of this kind, and many of them will be found collected in Mr. Starkie's late valuable Treatise on Evidence. 3 Starkie's Evid. part iv. 1234, 1241, 1248, and note 1250, &c. The same presumptions are, we thinJs, applicable to corporations. Persons acting publicly as officers of the corporation, are to be presumed rightfully in office; acts done by the corporation, which presuppose the existence of other acts to make them legally operative, are pre- sumptive proofs of the latter. Grants and proceedings beneficial to the corporation are presumed to be accepted ; and slight acts on their part, which can be reasonably accounted for only upon the supposition of such acceptance, are admitted as presumptions of the fact. If officers of the corporation openly exercise a power which presupposes a dele- gated authority for the purpose, and other corporate acts show that the corporation must have contemplated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed. If a person acts notoriously as cashier of a bank, and is recognised by the directors, or by the corpo- ration, as an existing officer, a regular appointment will be presumed; and his acts* as cashier, will bind the corporation, although no written #44fil proof is or can *be adduced of his appointment. In short, we J think, that the acts of artificial persons afford the same pre- sumptions as the acts of natural persons. Each affords presumptions, from acts done, of what must have preceded them, as matters of right, or matters of duty. It may not be without use to advert to a few cases where corporate (o) See Rex v. Hawkins, 10 East's Rep. 211; Powell v. Milbourne, SWilson, 355 ; Hart- Viell V. Root, 19 Johns. Rep. 345. 366 JANUARY TERM, 1827. 446 [Bank of the United States v. Dandridge.] acts have been the subject of presumptions. In the first place we may advert to the known fact, that a charter may be presumed to have been given to persons who have long acted as a corporation, and assumed the exercise of the powers of a corporate body, whether of an ordinary or extraordinary nature. This is the case in respect to ail corporations existing by presumption. Yet the very case supposes that no written proof can be adduced of a charter, or of a vote of the corporators to accept the charter. Yet, both a charter and acceptance are vital to the existence of the corporation. They are, however, presumed, not merely Irom the lapse Of time, but from the continued exercise of corporate powers which presuppose their existence. So, in relation to the question of acceptance of a particular charter by an existing corporation, or by corporators already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be inferred. It is not indispensable to show a written instrument or vote of acceptance on the corporation books. It may be inferred from other facts which demonstrate that it must have been accepted. Upon this point it is not necessary to do more than to refer to the general course of reasoning in The King v. Amery, 1 TerTii Rep. 595 ; S. C, 2 Term Rep. 515, as applied to the circumstances of that case, (a) In Wood v. Tate, 5 Bos. and Pull. 246, which was replevin upon a distress made by the bailiff of the borough of Morpeth, for rent, it appeared in evidence, that the tenant went into possession under a lease void for not being executed under the corporate seal, even if made by proper officers ; yet the court held, that though the lease was void, the tenant was to be deemed tenant from year to year under the cor- poration, and his payment of rent from time to time to the officers of the corporation, (though not proved to be by virtue of any written author- ity,) was sufficient proof of tenancy under the corporation, on which the corporation might distrain for the rent in arrear. In Doe v. Woodman, 8 jEasi's i?ejB. 228, where certain premises had been demised by the plaintiff to the corporation, as tenant from year to year, at an annual rent, though it does not appear in what manner the demise had been accepted, except by the payment of rent by the bailiff, as such, it seems to have been taken for granted that it was proper evidence of a holding *by the corporation. In Magill v. KaufTman, 4 Serg. and Rawle r^AAm 317, which was an ejectment for land claimed by a presbyterian ^ congregation, before incorporation, under a purchase by their trustees, and after their incorporation claimed in their right as a corporation, the supreme court of Pennsylvania held, that evidence of the acts and de- clarations of the trustees and agents of the corporation, both before and after the incorporation, while transacting the business of the corpora- tion, and also evidence by witnesses of what passed at the meetings of the congregation when assembled on business, were admissible to show their possession of the land, and the extent of their claim to its bound- aries. This must necessarily have proceeded upon the ground that the acts of corporate agents, and even of aggregate bodies corporate or un- incorporated, might be established independent of written minutes of their proceedings. In respect to grants and deeds beneficial to a corporation, there (a) See also NewUng v. Francis, 3 Term Rep. 189 ; Butler v. Palmer, Salk. 191. 367 447 SUPREME COURT. [Bank of the United States v. Dandridge.] seems to be no particular reason why their assent to, and acceptance of the same, may not be inferred from their acts, as well as in the case of individuals. Suppose a deed-poll granting lands to a corporation, can it be necessary to show that there was an acceptance by the corpo- ration by an assent under seal, if it be a corporation at the common law; or by a written vote, if the corporation may signify its assent in that manner? Why may not its occupation and improvement, and the demise of the land by its agents, be justly admitted, by implication, to establish the fact in favour and for the benefit of the corporation I Why should the omission to record the assent, if actually given, deprive the corporation of the property which it gained in virtue of such actual assent 1 The validity of such a grant depends upon the acceptance, not upon the mode by which it is proved. It is no implied condition ■that the corporation shall perpetuate the evidence of its assent in a par- ticular way. At least if it be so, we think it is incumbent on those who maintain the affirmative, to point out the authorities which sustain it. None such have been cited at the bar. On the contrary, there are highly respectable decisions, made upon great consideration, which assert a different doctrine. The case of the proprietors of the Canal Bridge i'. Gordon, 1 Pickering's Rep. 397, is directly in point. There the object was to impose an onerous duty, and to discharge or limit the right of toll of the plaintiffs ; and the court held, that the corporation could bind itself, and did in fact, in that case, bind itself to a surrender of its valuable rights, by implications from corporate acts without vote or deed. The learned chief justice of Massachusetts, on that oc- casion, in delivering the opinion of the court, said, " it is true that the acts, doings, and declarations of individual members of the corporation, unsanctioned by the body, are not binding upon it ; but it is equally *4481 *^''"^ ^^^* inferences may be drawn from corporate acts, tending J to prove a contract or promise, as well as in the case of an indi- vidual ; and that a vote is not always necessary to establish such con- tract or promise. This has been settled in several cases in this country and in England." And afterwards, addressing himself to the facts of that case, he added, " the question then is narrowed to this : have the pro- prietors of the canal bridge assented to this proposition, and acted under it 1 We find no vote to this effect ; but we do find that the cross-bridge was suffered to unite with theirs, pursuant to this proposition, and that for four years all were suffered to pass without toll, who came from Charlestown to Cambridge, or vice versa. Now, corporations can be bound by implication as well as individuals, as has been before stated ; and no acts could be stronger to show an assent to a proposition, an agreement, or bargain, than those which have been mentioned." Nor was this doctrine new at that time in that court. It may be clearly inferred from the prior cases of the President, &c., of the Salem Bank v. The President, &c., of the Gloucester Bank, 17 Mass. Rep. 1 ; And Foster v. The President, &c., of the Essex Bank, 17 .Wa.w. Rep. 479. And it has been more recently confirmed in The Episcopal Charitable Society v. The Episcopal Church in Dedham, I Pick. Rep. 373. It may therefore be considered as conclusiv^ely settled in Massachusetts. The case of The Bank of Columbia v. Patterson's Adm., in this court, 7 Crunch, 399, 3 Cond. Rep. 501, did not call for any expression of opinion upon the particular point now under consideration ; but the 368 JANUARY TERM, 1827. 448 [Bank of the United States v. Dandridge.] court there held, that from the evidence in that case, the jury might legally infer an express or an implied promise of the corporation. The court there said, "the contracts were for the exclusive use and benefit of the corporation, and made by their agents for purposes authorized by the charter. The corporation proceed, on the faith of those contracts, to pay money, from time to time, to the intestate. Although, then, an action might have lain against the committee personally, (for the con- tract was a personal contract by them, under their private seals,) upon their express contract, yet as the whole benefit resulted to the corpora- tion, it seems to the court, that from this evidence the jury might legally infer that the corporation had adopted the contracts of the committee, and had voted to pay the whole sum which should become due under the contracts, and that the intestate had accepted their engagement." Here, then, secondary evidence and presumptive proof was admitted in a suit against the corporation to fix its responsibility. A vote of the corporation was presumed from other acts, though there was no proof of such a vote being on record. If the corporation had shown that no such vote had been on record, would the presumption have been com- pletely *repelled ? Would the omission of the corporation to r^AAn record its own doings, have prejudiced the rights of the pftrty ^ relying upon the good faith of an actual vote of the corporation ? If such omission would not be fa,tal to the plaintiff in suits against the corporation, (as in our opinion it would not be,) it establishes the fact, that acts of the corporation, not recorded, may be established by parol proofs, and, of course, by presumptive proofs. In reason and justice, there does not seem any solid ground why a corporation may not, in case of the omission of its officers to preserve a written record, give such proofs to support its rights, as would be admissible in suits against it to support adverse rights. The true question in such case would seem to be, not which party was plaintiff or defendant, but whether the evidence was the best the nature of the case admitted of, and left nothing behind in the possession or control of the party higher than secondary evidence. The case of Dunn v. St. Andrew's Church, 14 Johns. Rep. 118, proceeded upon like reasoning. There the plain- tiff had performed services as clerk of the church, for the corporation, for which he had received some payments. The records of the cor- poration contained entries of the payment of moneys, at several times, to the plaintiff, for his services ; but no resolution was entered on the minutes or records of the corporation, appointing the plaintiff clerk of the church. The court held such vote unnecessary to be shown, and that there was sufficient evidence of an implied promise of the cor- poration to make the compensation. In the King v. inhabitants of Chipping Norton, 5 East's Rep. 240 ; there was a demise by a verbal agreement of the corporation, at a court leet, of certain tolls belonging to the corporation. The court held, that the corporation could demise only under seal, and that the agreement amounted to a mere license to collect the tolls, though it might be a ground to apply to a court of equity to enforce it as an equitable interest. The ground there was not that the proceeding being verbal was a nullity, but that it did not operate as a demise of the tenement at law. It was conceded that the verbal agreement bound the corporation as a license. Vol. VI. — 47 369 M9 SUPREME COURT. [Bank of the United States v. Dandridge.] But the present question does not depend upon the point, whether the acts of a corporation may be proved otherwise than by some written document. The reasoning upon it, however, was very ably gone into at the bar, and as it furnishes very strong illustrations upon the point now in judgment, it could not be passed over with propriety. In the present case, the acts of the corporation itself, done, at a cor- porate meeting, are not in controversy. In corporations existing at the common law and by charter, there are great diversities both of powers and organization. In some corporations the whole powers rest in a *4501 ^^'^''^ *body, or in select bodies, with powers to perpetuate J their own corporate existence, by filling up vacancies in their own body ; and such body or bodies constitute the corporation itself, and the meetings and acts done thereat are the meetings and acts of the corporation itself. In short, they constitute the corporation, so far as it has life or organization exclusively. Such are many of the boroughs and other municipal corporations in England, familiarly known by the name of quasi corporations. There are corporations of another sort, where the aggregate body of corporators meet and assemble to dis- charge corporate functions, and have authority also to perform cer- tain acts and duties, by means of different agents, sometimes designated in the statutes creating them, and sometimes left to their own choice. Of this nature are the townships in New England, where the inhabitants are corporators, and assemble to exercise corporate powers, and have authority to appoint various officers to perform public duties, under the guidance and direction of the corporation. Such are the selectmen for the ordinary municipal concerns; overseers of the poor, school committees, assessors of taxes, and various other functionaries. In these cases, the various officers form different boards for the per- formance of different duties, subordinate to the corporation ; their acts lawfully done, bind the corporation ; but they do not constitute the corporation, nor are their meetings the meetings of the corporation. In the latter cases, the records of the officers are properly records of their own proceedings, and not of the proceedings of the corporation itself. It will be at once seen, upon an inspection of the charter creating the Bank of the United States, that it is not a corporation of the former description. The charter, in the first section, declares, that a bank of the United States of America shall be established with a capital of thirty -five million of dollars, of which seven millions shall be subscribed by the United States, and the residue by individuals and corporations. It proceeds to enact, in the seventh section, that the subscribers to the said Bank of the United States, their successors and assigns, shall be and hereby are created a corporation and body politic, by the name and style of "the President, Directors, and Com- pany of the Bank of the United States," and by that name shall be capable in law to have, purchase, receive, &c., lands, &c., goods, chattels, and effects, &c., to an amount not exceeding fifty-five millions of dollars, including their capital stock ; and the same to sell, grant, &c. ; to sue and be sued, &c. ; to make, have, and use a common seal, and to alter the same at pleasure ; to ordain, and establish, and put in execution such by-laws and ordinances as they shall deem necessary and convenient for the government of the said corporation ; and gene- 370 JANUARY TERM, 1827. 450 [Bank of the United States v. Dandridge.] rally to do and execute all and singular the acts, matters, and things, ♦which to them it shall or may appertain to do, subject to the r^^e^i other provisions of the act. It proceeds to enact, that for the •- management of the affairs of the corporation, there shall annually be chosen twenty-five directors by the stockholders; and the board of directors shall appoint a president of the corporation. The directors have further authority given to them to appoint such officers, clerks, and servants, as they shall deem necessary for executing the business of the corporation, and to exercise such other powers and authorities for the well governing and ordering of the officers of the corporation, as shall be prescribed by the laws, regulations, and ordinances of the same. The directors have further authority given them to establish offices of discount and deposit, wheresoever they shall think fit, within the United States, or the territories thereof, and to commit the management of the said offices, and of thebusiness thereof respectively, to such per- sons, and under such regulations as they shall deem proper, not being contrary to law or the constitution of the bank; and annually to choose the directors of such offices. Among the rules, which the act prescribes as fundamental articles of the constitution of the corporation,' are the following : " that not less than seven directors shall constitute a board for the transaction of business, of whom the president shall always be one, except in case of sickness or necessary absence;" that sixty stockholders, who are proprietors of one thousand shares in the stock, " shall have power at any time to call a general meeting of the stockholders, for purposes relative to the institution ;" " that each cashier or treasurer, before he enters upon the duties of his office, shall be required to give bond, with two or more sureties, to the satisfaction of the directors, in a sum not less than fifty thousand dollars, with con- dition for his good behaviour, and the faithful performance of his duties to the corporation ;" that the total amount of the debts of the corpora- tion shall not exceed a limited sum; and if it does, the directors shall, in their natural and private capacities, be liable to any creditor there- for, with the exception that any director, who shall have been absent when the excess was contracted or created, and who shall have dissented from the resolution or act authorizing it, and shall give notice of the fact in a particular manner, shall be exonerated ; that the secretary of the treasury shall be furnished, from time to time, as often as he may require, &c., with statements of the amount of the capital stock, of debts due, of moneys deposited, of notes in circulation, and of specie on hand ; and shall have a right to inspect such general accounts of the bank, as shall relate to the said statement. The act further provides, that a committee of either house of congress, appointed for that purpose, shall have a right to inspect the books, and to examine into the pro- ceedings *of the corporation, and to report whether the provi- [-#450 sions of the charter have been violated or not. *- Such is a summary of the most important provisions of the act con- stituting the charter of the bank, and material to the present cause. It is most manifest that the corporation is altogether a distinct body from the directors, possessing all the general powers and attributes of an aggregate corporation, and entitled to direct and superintend the ma- nagement of its own property, and the government of the institution, and to enact by-laws for this purpose. So far as the act delegates au- 371 452 SUPREME COURT. [Bank of the United States v. Dandridge.] thority to the directors, the latter possess it, and may exercise it, not as constituting the corporation itself, but as its express statute agents to act in the ordinary business of the institution. The directors are created a board, and not a corporate body. If the authority delegated to them can only be exercised by them when assembled as a board, with a proper quorum, and not by the separate assent of a majority of the whole body, (on which it is unnecessary here to express any opinion,) still it is clear, that their meetings and acts are but the meetings and acts of a board of agents acting ex officio, and not the meetings and acts of the corporation itself. The whole structure of the charter, and the whole proceedings under it, as well as the by-laws and regulations which have come under our review, demonstrate that this has been the uniform construction of the corporation itself, and of the directors. In- deed, this is believed to be so universally acted upon in all the cases respecting banks, which have been judicially decided, that it is not thought necessary to do more than express our opinion that such is the true interpretation of this charter. It is not necessary to consider whether the sixth of the fundamental articles of the constitution of the bank, which directs that such cashier or treasurer shall be required to give bond, &c., to the satisfaction of the directors, might have applied, by hs own forccj to the cashiers of offices established as offices of discount and deposit. In the first place, that point is not put in the pleadings ; in the next place, the directors are, by the charter, authorized to establish such offices, subject to such regulations as they shall deem proper ; and, in virtue of that authority, they have prescribed regulations on this very subject in the thirtieth article of the rules and regulations adopted by them for the government of such offices, which are set forth at large in the transcript of the re- cord. The fourth of these articles declares, that the directors of the Bank of the United States shall appoint the cashiers of the offices of discount and deposit ; the fifth declares the duties of the cashier, and, among other things, his duty "to attend all meetings of the board" of directors of the office, and " to keep a fair and regular record of its pro- ^Aro-i *ceedings." The sixteenth directs that all notes and bills dis- J counted shall be entered in a book to be called the credit book, in such manner as to discover to the board at one view, on each dis- count day, the amount which any person is discounter, or is indebted to the office, either as payer or endorser. The thirteenth directs, " that the cashier of each office shall give bond to the president, direct- ors, and company of the Bank of the United States, with two or more approved securities, with a condition for his good behaviour and faith- ful performance of his duties to the corporation." By whom the ap- proval is to be made, whether by the directors of the parent bank, or by the directors of the office, is not stated. If the directors of the parent bank might, by the charter, have committed it to the local di- rectors, being found in a system of by-laws for their regulation, it would seem a natural inference that it was their intention to commit it to the latter. When, as in the fourth rule, they reserve the appointment of the cashier to themselves, the language directly reserves it to "the directors of the Bank of the United States." If such authority could not, by the charter, be delegated, then it must be deemed to belong to the directors of the parent bank. It is in the latter point of view that 372 JANUARY TERM, 1827. 453 [Bank of the United States v. Dandridge.] it has been argued at the bar, and in that view it will be considered by this court. Assuming, then, that the directors of the parent bank were, as a board, to approve of the bond, so far as it respects the securities, in what manner is that approval to be evidenced 1 Without question, the directors keep a record of their proceedings as a board ; and it ap- pears by the rules and regulations of the parent bank read at the bar, that the cashier is bound " to attend all meetings of the board, and to keep a fair and regular record of its proceedings." If he does not keep such a record, are all such proceedings void, or is the bank at liberty to establish them by secondary evidence ? In the present case, (we repeat it,) the whole argument has proceeded upon the ground, as con- ceded, that no such record exists of the approval of the present bond. The charter of the bank does not, in terms, require that such an ap- proval shall be by writing, or entered of record. It does not, in terms, require that the proceedings of the directors shall generally be recorded, much less that all of them shall be recorded. It seems to have left these matters to the general discretion of the corporation, and of the directors ; and though it obviously contemplates that there will be books kept by the corporation which will disclose the general state of its affairs, it is not a just inference that it meant that every official act of the di- rectors should be recorded, of whatever nature it might be. And if it had, it would deserve consideration, whether such provisions ought to be deemed conditions precedent, without which the act was void, or only *directory to the officers in the performance of their duty, r^ACJ the omission of which might subject themselves to responsibility, ■- and the corporation itself to the imputation of a violation of its charter. There are many cases where an act is prescribed by law to be done, and record made thereof, and, nevertheless, if left unrecorded, the act is valid. By the English marriage act, registers of marriages are re- quired to be kept in public books in every parish, and signed by the parties and the minister, and attested by two witnesses. Yet, it has been decided, that such an entry is not necessary to the validity of the marriage, and that an erroneous entry will not vitiate it. (I Phillips's Evid. ch. 5, s. 2.) So, where a magistrate omits to record an oath of office taken before him, parol evidence of the fact is admissible, though it is an omission of duty. (Bassett v. Marshall, 9 Mass. Rep. 312.) That some of the provisions of the charter and by-laws may well be deemed directory to the officers, and not conditions without which their acts would be utterly void, will scarcely be disputed. What are to be deemed such provisions must depend upon the sound' construction of the nature and object of each regulation, and of public convenience, and apparent legislative intention. If a regulation be merely directory, then any deviation from it, though it may subject the officers to respon- sibility both to the government and the stockholders, cannot be taken advantage of by third persons. (United States v. Kirkpatrick, 9 Wheat. Rep. 720, 5 Cond. Rep. 733. United States v. Vanzandt, 11 fVheat. Rep. 184, 6 Cond. Rep. 284.) In the case of the Bank of the Northern Liberties v. Cresson, 12 Serg. and Rawle, 306, the directors were required by their own by-laws, to take a bond of the book-keeper with sureties, and they took a bond from sureties without joining the principal. The court held the bond valid, notwithstanding the by-law, 2G 373 454 SUPREME COURT. [Bank of the United States v. Dandridge.] and took notice of the distinction between such provisions of a statute as are essential to the validity of an act, and such as are merely du'ect- ory. Mr. Justice Duncan said that it was a matter between the directors and the stockholders, and that the obligors, who had voluntarily en- tered into the stipulation, could not withdraw themselves from their obligation. But, waiving for the present this inquiry, we ask, upon, what ground it can be maintained that the approval of the bond by the directors must be in writing? It is not required by the terms of the charter, or the by-laws. In each of them the language points to the fact of ap- proval, and not to the evidence by which it is to be established, if con- tr9verted. It is nowhere said the approval shall be in writing, or of record. The argument at the bar upon the necessity of its being in writing, must, therefore, depend for its support upon the ground that it is a just inference of law from the nature and objects of the statute, *4')'>1 *'''°'" '•^^ analogy of the board of directors to a corporate body, -■ from principles of public convenience or necessity, or from the language of authorities which ought not to be departed from. Upon the best consideration we can give the subject, we do not think that the argument can be maintained under any of these aspects. If the directors had been a board constituted by an unincorporated company, or by a single person, for the like purposes, and with the like powers, it would scarcely occur to any person that the acts of the board must, of necessity, be reduced to writing, before they would bind their principal. The agents of private persons are not usually in the habit of keeping regular minutes of all their joint proceedings, and hitherto there has been no adjudication, which requires such a verification of their joint acts. Yet, innumerable cases must have arisen, in which such a principle might have been applied with success, if it had ever been supposed to possess a legal existence. The acts of private and public trustees, of joint agents for commercial purposes, of commis- sioners for private objects, and of public boards, must have presented many occasions for passing upon such a doctrine. The silence of the books under such circumstances, would form no inconsiderable answer to the argument, connected, as it must be, with the knowledge of the loose and inartificial manner in which much of the business of agencies is generally conducted. There may be, and undoubtedly there is, some convenience in the preservation of minutes of proceedings by agents; but their subsequent acts are often just as irresistible proof of the existence of prior dependent acts and votes, as if minutes were pro- duced. If a board of directors were created to erect a bridge, or make a canal or turnpike, and they proceeded to do the service, and under their superintendence there were persons employed who executed the work, and the board prqceeded to pay them therefor out of funds in their hands, these facts oi public notoriety would be as irresistible evi- dence of the due execution of their authority, and of due contracts made, and proceedings had by the board, as if the proceedings were recorded in the most formal and regular manner. Can there be a doubt, that, in thei cases put, many contracts are so varied and rescinded, many acts done and assented to by the board, which never are reduced to formal votes, and declarations, and written proofs ? We think we may safely say, that the sense of the profession, and the course of pri- 374 JANUARY TERM, 1827. 455 [Bank of the United Stales v. Dandridge.] vate business, have never, hitherto, in respect to private agencies and boards, recognised the existence of any rule which required their acts and proceedings to be justified by written votes. - What foundation is there for a different rule in relation to agencies for corporations? The acts of a single duly authorized agent of a *corporation, within the scope of his authority, bind the cor- r^Acc poration, although he keeps no minutes of such acts. They L may be, and they are, daily proved aliunde. In what respects do the acts of a board of agents differ from those of a single agent, in their operation as evidence ? A board may accept a contract, or approve a security by vote, or by a tacit and implied assent. The vote or assent may be more difficult of proof by parol evidence, than if it were re- duced to writing. But, surely, this is not a sufficient reason for de- claring, that the vote or assent is inoperative. If a board of directors agree to build a banking-house, and it is accordingly built, and paid for by their cashier, with their assent, is the whole proceeding to be deemed void, because, in the progress of the undertaking, from acci- dent, or negligence, the votes and the payments have not been verified by regular minutes? But, it is said, that in the present case, the cashier is required to keep a fair and regular record of the proceedings of the directors. But if this is admitted, it does not establish the pur- pose for which it is used. It is a by-law of the corporation, directory to its officers, enacted for its own security and benefit, and for the pur- pose of restricting the acts of the directors. If the cashier should neglect to keep such records, or should omit any single vote, the by- law has not declared that the vote shall be void, and the proceedings nugatory. Suppose no such by-law had been passed, would not the votes of the board have bound the corporation? If they had dis- counted notes, taken mortgages, advanced money, and bought stock by faith of viva voce, unrecorded votes, and evidence of the existence of these acts and votes necessarily resulted from the other proceedings of the bank, could it be the intention of the legislature that they should be utterly void ? or of the stockholders, that any by-law should operate a legal extinguishment, of their title to the property ? It seems to us difficult to imagine that such could be the legislative or corporate inten- tion. If, in ordinary cases, such an intention could not be inferred in order to produce a very strict and inconvenient construction of the charter, there is still less reason to apply it to the cases of approval of official bonds. These are taken exclusively for the security and benefit of the bank itself, and not of mere strangers. The approval is matter of discretion in the directors, and that discretion once being exercised, it is of very little consequence to the bank whether a written minute of the vote be made or not. All that the bank is interested in is, that there shall be an approval ; and it matters not whether the fact is established by a direct record, or by acts of the directors, which re- cognise its prior existence. It has been supposed by the defendant's counsel, that the case of Beatty, v. The Marine Insurance Company, 2 Johns. Rep. 109, is ia *point in his favour. Upon an examination of the facts of that r^^n'r case, we think it is otherwise. In' that case, the incorporating L act provided that no losses should be paid without the approbation of at least four of the directors, with the president and his assistants, or 375 457 SUPREME COURT. [Bank of the United States v. Dandridge.] a majority of them. The attempt was to charge' the company with a total loss, upon a verbal agreement made by the president and assist- ants to accept an abandonment and pay a total loss, at a meeting when it did not appear that a single director was present. The board, there- fore, was not so constituted as to bind the company. Mr. Justice Thompson, in delivering the opinion of the court, said, " no part of the case will warrant an inference that any of the directors were present at the time of the alleged acceptance. When the plaintiff's agent called to know the determination of the company in relation to the payment of the loss, he says, the secretary went into the room where the president and assistants were convened, and the answer returned was, that the president and assistants had agreed to pay a total loss ; but no mention is made of any of the directors being present, or assenting to it. When the testimony is positive as to the persons by whom the ac- ceptance is made, there is no room left for presumption. If any of the directors were present, so as to make the act binding on the company, the plaintiff ought to have shown it affirmatively. We are of opinion, therefore, that the acceptance, not having been made by the agents con- stituted by the act of incorporation, cannot be binding on the company." The case, therefore, so far as it goes, is against the defendants. It car- ries an almost irresistible inference that the court did not think a writ- ten vote of acceptance necessary, and that parol proof would have been sufficient. No othfer authority has been produced to sustain the argu- ment ; and it cannot be doubted that, if any did exist, the researches of the counsel would have brought it before the court. We may there- fore consider that it is a new doctrine, unsupported by prior cases, and to be established now for the first time. We think that the reasons of public convenience, and individual safety and protection, would not be promoted by establishing it. On the other hand, every case which has been adduced to show that corporate acts need not always be reduced to writing, but may be proved by presumptions, is, a fortiori, an authority against the argu- ment. There are, however, some cases which confirm in a very clear manner the doctrine for which we contend, and which have not been yet particularly adverted to. In the case of Apthorp, treasurer of the commonwealth, v. North, 14 Mass. Rep. 167, a suit was brought on the official bond of a coroner. By the laws of Massachusetts, the bond was required to be approved by the court of common pleas of the county. It was delivered into the court of common pleas by the first justice ♦4'ifil *'^h^''®°f' ^"*^ remained on its files for some time. No record was -1 ever made of its approval by the court of common pleas ; and, at the trial, contradictory evidence was offered of a presumptive nature as to its approval and rejection by that court. It was held that, notwith- standing there was no record of any approval, the bond might well, upon the circumstances, be deemed to have been duly delivered and approved. Chief justice Parker, in delivering the opinion of the court, said, " a formal act or certificate of approbation by the court is not made necessary by the statute ;" and, after commenting on the terms of the statute, he added, " it is not, then, required expressly that any record or certificate should be made that the bond given was approved. But, if such bond was found upon the files, without any evidence accompanying it that it has been rejected, and the principal has proceeded to execute the duties of his office, the presumption is violent, if riot conclusive, that 376 JANUARY TERM, 1827. 458 [Bank of the United States v. Dandridge.] the bond was received by the court as the security required by the sta- tute." In Foster v. The Essex Bank, 17 Mass. Rep. 479, there was no clause in the charter respecting the receipt of special deposits, and no by-law had ever been made by the corporation or the directors on the subject. But the practice had long prevailed to receive such deposits, and was known to the directors, though no vote could be found recog- nising them. The court held the bank liable for the safe-keeping of such deposits, like a common bailee, without hire, upon the ground that there was a plain adoption of them, from the knowledge and acqui- escence of the directors. The case of the Dedham Bank v. Chickering, 3 Pick. Rep. 335, approaches still nearer the present case, and discussed the very point now in judgment. It was the case of an official bond, given by the cashier of the bank, with sureties. The charter required that the cashier, before he entered upon the duties of his office, should give bond, with two sureties, to the satisfaction of the directors. After the' cashier was elected, the directors passed a vote that A. B. and C. D. be accepted as sureties in a bond to be given by the. cashier for the faithful discharge of the duties of his office. The bond in question was dated before this vote, but does not seem to have had but one surety. That circumstance, however, was not relied on at the argument ; but the principal ground was that there had been no approval of the bond by the board of directors. It was found on their files, and the cashier had been frequently re-elected. Chief justice Parker, in delivering the judgment of the court, said, " we should have supposed that in the case as well of a corporation as of an individual, a paper intended for their benefit, and found on their files, would be considered as accepted by them ;" and, after alluding to the decision of the circuit court in this case, which required the record of a vote of the directors, he added, " we ♦think, however, that tiie case before us may be decided without r^AK-n touching that principle, for, admitting it to be correct, we are, L nevertheless, of opinion, that the vote to accept the sureties, and the bond being in possession of the president, are a sufficient acceptance of the bond." It is impossible, we think, to doubt, that the real opinion of the court was, that the acceptance might be proved without any re- cord of a vote, and that the very facts of the case brought the point of implied and presumptive acceptance from other acts of the directors completely in judgment. So far, then, as authorities entitled to very great respect and defer- ence go, we are of opinion, that they are against the reasoning assumed on behalf of the defendants. To all the authorities cited at the bar on this point, the counsel for the defendants has made one answer, which he deems applicable to all of them. It is this, that where no particular form for the expression of the corporate will is prescribed by law, there it may be inferred from corporate acts ; but that where such a form is prescribed, it must be followed. This distinction, he supposes, will reconcile all the cases. The distinction, if admitted, will not aid the argument. It may be, and, indeed, is conceded, that no corporate act can be valid, if done differently from the manner prescribed by law, as essential to its vali- dity. If in the present case the statute had prescribed that nothing but a written vote on record should be deemed an approval of the bond, or that the cashier should not be deemed, for any purpose, in office, Vol. VI.— 48 2c(2 377 459 SUPREME COURT. [Bwvk of the United States v. Dandridge.] until such approval, the consequence contended for would have followed!. His acts would have been utterly void, and any unrecorded vote of approval nugatory. But the very point in controversy is, whether such written record be necessary by the charter or by-laws, not as a matter of convenience or discreet exercise of authority, but as a sine qua non to the validity of the act. The cases which have been commented on by the court, do not deny the distinction, but proceed upon the ground, that unless positively required by law, a written vote is not to be deemed indispensable. The court, then, is called upon, not to administer a doctrine of strict, and settled, and technical law, but to introduce a new rule into the law of evidence ; a,nd to exclude presumptive evi- dence, not only of the acts of corporations, but of their unincorporated agents. If such a rule be fit to be adopted, it must be upon the founda- tion of some clear and unequivocal analogy of law, and public policy and convenience. We are not prepared to admit that it has any such foundation. On the contrary, we are persuaded that the introduction of the rule itself would be attended: with serious public mischiefs, and *460T ^^^^^ many titles and rights, which have been *consummated -■ in entire good faith, and the confidence that no such written record was necessary to their validity. We cannot, therefore, assent to the doctrine decided in the circuit court on this point. In respect to a collateral argument urged at the bar, upon the point whether the terms of the charter and by-laws would be complied with, without an express vote that the bond was " to the satisfaction of the directors," or that the sureties of the bond were " approved" by the directors, we are of opinion, that in either case there need not be express votes of approval and satisfaction. An acceptance of the bond by the directors would, necessarily, in intendment of law, include the approval of it, and be conclusive of it. The remaining point is as to the opinion of the court delivered in the first bill of exceptions. If that opinion meant to state what it seems to import, that the cashier was not legally cashier, so as to bind the bank in its rights and interests by his acts, if permitted to enter upon the duties of his oflBce, before a satisfactory bond was given, we think it cannot be maintained. The cashier was duly appointed, and he was permitted to act in his office, under the express sanction of the directors, for several years. If he had never given any bond whatsoever during this period, yet his acts within the scope of his authority would have bound the bank. Notes signed by him would be lawful notes ; moneys paid by him would be irrecoverable ; records kept by him would be bank records. Indeed, it is conceded by the defendant's counsel, that the bank would, under such circumstances, be bound by his acts in favour of third persons, acting upon the faith of his public character. The same principlej in our opinion, applies in favour, as against the bank. If he could legally perform the duties of the office for any pur- poses, he could for all. He was either an itgent, capable of binding the bank in all his official acts, or those acts were void as to third per- sons as well as the bank. If he was held out as an authorized cashier, that character was equally applicable to all who dealt with the bank, in transactions beneficial as well as onerous to the bank. It seems to lis, that the charter and the by-laws must be considered in this respect as directory to the board, and not as conditions precedent. The lan- 378 JANUARY TERM, 1827. 460 [Bank of the United States v. Dandridge.] guage is not more strong than that of the laws which came under the consideration of this court, in the United States v. Kirkpatrick, 9 Wheat. Rep. 720, 5 Cmd. Rep. 733, and the United States v. Van- zandt, 11 Wheat. Rep. 184, 6 Cond. Rep. 264. Our view of this matter is in exact coincidence with that entertained by the supreme court of Pennsylvania, in the Bank of the Northern.' Liberties v. Cresson, 12 Serg. and Rawle, 306. The directors might have been responsible for their neglect of duty ; but it was a matter ♦wholly between themselves and the stockholders, and between r^Aat the latter and the government, as a violation of the charter and ■- by-laws. So far, indeed, as respects the sureties to the bond, they may not be responsible for any breaches of official duty by the cashier, before their obligation has been accepted. But this is a very different consideration from that which respects the legal effects of the acts of the cashier him- self upon the interests and transactions of the bank itself. This is the substance of what we deem it necessary to say upon the present occasion. S)fe do not go into the consideration of the admissi- bility of every part of the documents and testimony offered in evidence. Perhaps some of them were in a shape not exactly fit to be admitted as formal evidence, without farther verification and proofs. But much of it was of a nature unexceptionable, as conducing to proof of the issues joined, if any thing short of record proof were admissible, as competent to establish the approval or acceptance of the bond. It is not under- stood that the circuit court entertained any doubt as to its general competency, except upon the ground already stated. We are of opinion, that the evidence was competent, in point of law, to go to the jury, not- withstanding there was no record of approval of the bond, it being in its nature competent ; its sufficiency to establish the issues was matter of fact, the decision of which belonged to the jury; and upon which they ought to have been allowed to pass their verdict. The judgment of the circuit court must be reversed, and a mandate - awarded, with directions to the circuit court to award a venire facias de novo. JuDeMENT. This cause came on, &c. On consideration whereof, it is ordered and adjudged, that there was error in the circuit court in rejecting the evidence offered by the plaintiff in the first bill of excep- tions stated, and not suffering the same to go to the jury in support of the issues joined in the case ; and also, that there was error in the said court in rejecting the evidence offered by the plaintiffs in the second bill of exceptions, and not suffering the same to go to the jury in sup- port of the same issues ; this court being of opinion, that the evidence was admissible in favour of the plaintiffs, notwithstanding there was no record of any approval of the bond stated in said bills of exceptions by the board of directors of the bank aforesaid, and that the plaintiffs were at liberty to prove the fact of such approval by the said board, by nre- sumptive evidence, in the same way and manner as such fact mignt be proved in the case of private persons not acting as a corporation, or as the agents of a corporation. And it is further ordered and adjudged, that for the error aforesaid, the judgment of the said circuit court be 379 462 SUPREME COURT. [Williams v. Noiris.] r*4fi9 *^"'^ hereby is, reversed and annulled, and that the same be ^ remanded to the said circuit court, with directions to award a venire facias de novo. Corporations. Decisions in the courts of the United States upon the liability of corpora- tions for contracts or undertakings authorized by them without their corporate seal. See Notes, 1 Cond. Rep. 376. Williams v. Norris. 12 Wheaton'a Reports, 117. Under the twenty-fifth section of the judiciary act of 1789, ch. 20, where the construction of any clause in the constitution, or any statute of the United States, is drawn in question, in any suit in a state court, the decision must be against the title or right set up by the party under such clause of the constitution or statute, or this court has no appellate jurisdiction in the case. It is not sufficient that the construction of the statute was drawn in' question, and that the decision was against the title of the party : it must appear that bis title depended upon this statute. [See note at the end of the case.] Where, in such a case, the validity of a statute of any state is drawn in question, upon the ground of its being repugnant to the constitution of the United States, and the decision has been in favour of its Validity, it is necessary to the exercise of the appellate jurisdiction of this court, that it should distinctly appear that the title or right of the party depended upon the statute. [See note at the end of the case.] The opinion of the court, or the reasons given for its judgment, (unless in the case of instruc- tion to the jury, spread upon the record by a bill of exceptions,) form no part of the record within the meaning of the above twenty-fifth section. Nor are they made a part of the record in Tennessee, by the local law of that state, requiring the judges to file their opinions in writing among the papers in the cause. No orders in the state court, after the removal of the record into this court, (not made by way of amendment, but introducing new matter,) can be brought into the record here. The cause must be heard and determined upon the record as it stood when removed. THIS cause was argued by Mr. White and Mr. Eaton, for the plain- tiff; and by Mr. Benton and Mr. Polk, for the defendant. Cases cited: Miller v. Nicholls, 4 Wheat. Rep. 311, 4 Cond. Rep. 416. Martin v. Hunter, 1 Wheat. Rep. 304, 3 Cond. Rep. 575. Inglee V. Coolidge, 2 Wheat. Rep. 363, 4 Cond. Rep. 155. Lanusse v. Barker, 3 Wheat. Rep. 147, 4 Cond. Rep. 204. *4631 *'^'^' ^^^^^ Justice Marshall delivered the opinion of the -■ court. This is a writ of error to a judgment rendered in the highest court for the state of Tennessee ; consequently this court can exercise no other jurisdiction in the case than is giveh by the twenty-fifth section of the judiciary act. The counsel for the plaintiff in error contend, 1st. That an act of congress has been drawn into question in the state court, and that the decision has been against that act. 2d. That an act of the legislature of Tennessee, which impairs the obligation of a contract, has been drawn into question, and that the decision has been in favour of the party claiming under that act. 380 JANUARY TERM, 1827. 463 [Williams v. Norris.] As preliminary to a consideration of these points, it is necessary to inquire whether some additional papers which have been brought up by a certiorari, constitute a part of the record. These papers are, the opinion of one of the judges, which is supposed to have been delivered and filed as the opinion of the court that decided the cause ; and some proceedings which took place in the same court after the record had been removed into this court by writ of error. 1. Is the opinion a part of the record? As a general proposition, every gentleman of the profession will, without hesitation, answer this question in the negative. An opinion not given to the jury, pronounced after a verdict was rendered, and, consequently, having no influence on that verdict, which states merely the course of reasoning which conducted the court to its judgment, may explain the views and motives of the court, but does not form a part of its judgment, and cannot constitute a part of the record. The counsel for the plaintiff does not contend for the general prin- ciple, but insists that an. act of the legislature of Tennessee makes the opinion a part of the record in the courts of that state. An act passed in the year 1809, " to establish circuit courts, and a supreme court of errors and appeals," enacts, " that the judges of the court of errors and appeals, as well as the circuit court judges, shall, as to the decisions on all material points, file their opinions in writing among the papers of the cause in which such opinion may be given, within ten days from the delivering of the same." This sentence amounts to no more than a provision that the opinion of the judges shall appear, and shall be preserved with the other papers; but does not make that opinion a part of what is technically denominated " the record," more than the other papers in the cause among which it is filed. Depositions, and exhibits of every description, are papers in the cause, and, in one sense of the word, form a part of the record. In some states they are recorded by direction of law. ♦But, in a jury cause, they constitute no part of the record on r#AOA which the judgment of an appellate court is to be exercised, L unless made a part of it by bill of exceptions, or in some other manner recognised by law. But the plaintiff relies on the succeeding sentence as making the opinions of the judges apart of the record. That sen- tence is in these words : " and where a writ of error shall be allowed to reverse the judgment of any circuit court, in any cause, the clerk thereof shall send a transcript of the opinion of the judge to the court of errors and appeals, with the balance of the record in the cause pro- perly certified." It is contended, that the words " balapce of the re- cord," show the intention of the legislature that the opinion of the judge shall constitute a part of that which is technically the record. The capacity of a legislature to control the proceedings of courts is not questioned, and if its will be unequivocally declared, that will must be obeyed ; but, in construing a law, implications are not to be drawn from careless expressions, which would produce unreasonable results, and subvert the usual course of legal proceedings. Can the opinion of the judge introduce any fact into the cause? Where a judgment is rendered on a special verdict, for example, can he, by an opinion filed ten days afterwards, control the facts found in that verdict ? Or can he, by any thing inserted in his opinion, warrant any legal inferences 381 464 SUPREME COURT. [Williams v. Norris.] which the verdict itself would not justify, or in any manner change the legal effect of the finding ? If the opinion cannot produce these results, for what purpose is it introduced into the record 'i It can be introduced for no other purpose than to suggest to the supe- rior court those arguments which might otherwise escape its notice, which operated in producing the judgment, and which, in the opinion of the legislature, ought to be weighed by the superior court, before that judgment should be reversed or affirmed. If the judgment should be correct, although the reasoning, by which the mind of the judge was conducted to it, should be deemed unsound, that judgment would cer- tainly be affirmed in the superior court. We cannot, therefore, imply from the loose expression which has been cited, so extraordinary a result, as that the opinion of the court, filed after judgment, as an argu- ment, should be considered as a part of what is technically denomi- nated the record, or should be a supplement to the verdict. In the present case, the opinion which was filed, has been inspected^ and seems to have been founded on a construction of the laws of the state, with- out calling into question the constitution of the United States or any act of congress. This, however, is not relied on, because, as has been stated, the opinion has no other influence on the cause, than it would have had if published in a book of reports. *4fi'il *^^ ^^^ court could have doubted on the proper construction J of this section, the fact that it has never been understood, in the courts of the state, in the sense for which the counsel for the plain- tiff in error now contends, would be conclusive on the question. It is also not entirely unworthy of remark, that so much of the section as requires the judges of the circuit court to file their opinions in writing, was repealed before the judgment in this case was pronounced ; conse- quently, that part of the section which contains the words by which the doubt vvas created, forms no longer a part of the law. The certiorari' has also brought up a supplemental record, which contains a motion made in the state court by the plaintiff in error, after the cause had been removed into this court, to amend the record or entries of the judgment, by inserting the questions which were decided by the judges. The reasons for and against this motion are spread upon the record ; and the fects which would give jurisdiction to this court are asserted by the one party and denied by the other. The court took time for advisement, and does not appear to have granted or rejected the motion. This court is decidedly of opinion that no orders made in the court of the state, after the removal of the record into this court by writ of error, not made by way of amendment, but introducing new matter, could be brought into it, or could in any manner affect it. The cause must be tried on the record as it stood when removed, not upon the subsequent proceedings, which were pressed in the state court after its final judgment was given. In the present case, nothing is before the court but the original record. That record exhibits a caveat against the issuing of a grant on a sur- vey made for the defendant, and assigns various causes why it should not be issued. The plaintiff claimed under a patent from the state of Tennessee, and the caveat was the proper process to contest the right of the defendant. On the trial, a jury, in pursuance of the act of the 332 JANUARY TERM, 1827. 466 [Williams v. norris.] legislature of that state of 1807, ch. 1, sec. 8, was "empanelled and sworn, for finding such facts as are materia! to the cause, and not agreed on by the parties." The jury found, 1st, that on the 3d day of May, 1784, Ezekiel Norris made his entry in the office of John Arm- strong, entry-taker of western lands, reciting the words of the entry. In the margin, the following words are inserted, " detained for non- payment." 2d. That on the 18th of November, 1815, a duplicate warrant of survey was issued by the commissioner of West Tennessee to the said Norris, a copy of which is annexed. *3d. The third fact is, that the entry was special ; and the r^Afu- fourth, that tiie tract of land which the entry called to adjoin <- was notorious. 5th. That the original warrant. No. 2047, to Ezekiel Norris, issued and was filed in the comptroller's office of North Carolina, without any endorsement thereon ; that it was detained for non-payment. The copy of the warrant is found, and is incomplete, being without the signature of John Armstrong, the entry-taker. The caveatee required the jury to find as a fact, that the purchase- money was paid by Norris, and that the memorandum in the margin, •'detained for non-payment," was a fraudulent entry. The jury refuse to find this fact, and in its stead find " that it is not proved to them that the consideration, at the rate of ten pounds per hundred for every hun- dred acres, for the entry of the said Ezekiel Norris in question, was duly paid to John Armstrong, entry-taker, &c., and that afterwards it was falsely and fraudulently inserted in the margin of the entry-book con- taining said entry, and opposite to the same, by some person, ' detained for non-payment.' " The act of North Carolina, which authorized entries to be made in John Armstrong's office, contains the following enactment : that every person claiming, before he shall be entitled to enter a claim for any of the said lands, shall pay into the hands of the entry-taker, at the rate of ten pounds in specie, or in specie certificates at their nominal value, &;c., for every hundred acres so entered. The nineteenth section directs every entry-taker within the state to make out and deliver to the surveyor, on or before the 1st day of April and the 1st day of October annually, the warrants for the several entries (which are not disputed) made in his office, with an endorsement pre- scribed by law, showing the number and date of the entry. The circuit court for the county of Lincoln decided that Williams, the caveator, had the better right. This judgment was carried to the court of errors and appeals by writ of error, where it was reversed, and the caveat dismissed. That judgment is now before this court, and, in considering it, we are confined to the inquiry whether the record shows any misconstruc- tion of an act of congress, or of the constitution of the United States. In 1789, North Carolina ceded her western territory to the United States, reserving to herself the right of perfecting titles, in all cases where entries had been made according to law. Under this reservation, several acts were passed directing warrants of survey to be issued on entries made in John Armstrong's office, where the purchase-money had been or should be paid. 383 466 SUPREME COURT. [Williams v. Norris.] In 1796, Tennessee was erected into a state. In 1803, North Caro- ^Aon-] lin^- *entered into a compact with the state of Tennessee, in -■ which the former ceded to the latter the power to issue grants, and perfect titles to.all claims of land lying in the said state, which power had been reserved to herself by North Ca,rolina, in her acts ced- ing her then western territory to the United States. This compact was assented to by congress. In 1806, congress passed an act, ceding to the state of Tennessee all the rights of congress to lands lying east and north of a line described in the act. The land in controversy is within the territory thus ceded by con- gress. If any stipulation in the compact between North Carolina and Ten-. nessee could have affected the controversy between Williams and Norris, it must have been because the title of Norris came within the reserva- tion made by the state of North Carolina in her act of cession to con- gress. That reservation was the subject of the compact. As the con- troversy was not between two persons, claiming under North Carolina, but between a person claiming under North Carolina, and one claiming under the state of Tennessee, and the decision was in favour of the title set up under North Carolina, we cannot perceive how that decision can be considered as a violation of the compact. North Carolina stipulates that titles should be issued by the state of Tennessee for lands to which there were valid claims under her laws, and for which patents might have been issued by her, had the compact not been made. If the title of Norris was valid, according to the laws of North Carolina, then the decision in his favour is in pursuance of the compact ; if it was not valid, according to those laws, then the case is not within the compact. In either view of it, the compact has not been violated. The act which gives the sanction of congress to this agreement, also cedes to Tennessee a large territory, comprehending the lands in con- troversy. This cession is made on several conditions, one of which re- spects all existing claims to lands under the state of North Carolina. Its operation is understood to be, so far as it can affect the case now before the court, precisely the same with that of the compact between the two states. The same observations apply to it as were applied to that instrument. The title, for the benefit of which it was intended, if it has any influence in the case, has prevailed. Consequently, neither the compact between the states, nor the act of congress which assents to that contract, and which confers on the state of Tennessee the power to perfect titles in the district of country which comprehends the lands in controversy, can have been violated. A point of rather more difficulty remains to be considered. It is *4fi81 *contended, that the validity of a statute of the state of Ten- J nessee, has been drawn into question in this case, on the ground of its being repugnant to the constitution, and the decision has been in favour of its validity. The act supposed to be unconstitutional is, " an act for the relief of Ezekiel Norris." It is not stated in the record, that the constitutionality of this act was drawn in question ; and the twenty-fifth section of the judiciary act declares, that " no error shall be assigned or regarded, but such as 384 JANUARY TERM, 1827. 468 , [Williams o. Norris.] appears on the face of the record, and immediately respects the before- mentioned questions of validity, or construction of the said constitution," «fec. The case of Miller v. Nicholls, 4 Wheat. Rep. 311, 4 Cond. Hep. 465, has been relied on to prove that it is not necessary to the jurisdic- tion of the court, that the record shoiild, in terms, state a misconstruc- tion of the act of congress, or that it was drawn in question. It is suf- ficient to give the court jurisdiction, that the record should show that an act of congress was applicable to the case. The case of Miller v. Nicholls, was a claim filed by Mr. Dallas, the attorney of the United States, for a sum of money brought into a state court of Pennsylvania to be disposed of by the court. The money be- longed to a debtor of the United States, who was also indebted to the state of Pennsylvania. The court decreed the money to the state, in pursuance, it is presumed, of an act of the legislature, giving the state a preference. The case was brought, by writ of error, into this court, upon the allegation that the judgment was in violation of the act of con- gress, which gives priority to the United States in all cases of insol- vency. This court dismissed the writ of error, because, the fact of insolvency not having been shown, it did not appear from the record that the act of congress, or the constitutionality of the state law, was drawn into question. The court added, that the record need not state, in terms, a misconstruction of the act of congress, or that it was drawn in question. The act of congress applies to every insolvent debtor of the United States, and gives them priority as to all the property of the debtor which he possessed when the insolvency took place; but it applies only to cases of insolvency. Had the record shown that this was a case of insolvency, so that the act of congress applied to it, that act must have been misconstrued, or its obligation denied, when the court decreed the money to the state of Pennsylvania ; and the court was of opinion, that the act could not have been evaded, by the omission to refer to it in the judgment, or to spread it on the record. To apply the principle of that case to this, it will be necessary to *show that the title of Norris depended on the act passed in his r^Aon favour by the legislature of Tennessee, and that the act was re- '- pugnant to the constitution. That act is in these words : " be it enacted," &c., " that the com- missioner of West Tennessee be, and he is hereby authorized to issue to Ezekiel Norris, certificates or warrants to the amount of two thou- sand two hundred and eighty acres, being the amount of two entries, number 2,046 for one thousand acres, and number 2,047 for one thou- sand two hundred and eighty acres, on which no warrants or grants were issued ; provided that the said Ezekiel Norris shall produce suffi- cient evidence to the said commissioner that the consideration for said entries was paid, and that no warrant or grant ever issued on said entries." When this act passed, a patent had been granted by the state of Tennessee to the plaintiff in error, comprehending a part of the land covered by the entry of Norris. If its effect was to annul that patent, and to (jive a new title to Norris, the act would come within the deci- sion of this court in the case of Fletcher v. Peck, as a law impairing the obligation of contracts. In determining whether such was its Vol. VI.— 49 2 H 385 469 SUPREME COURT. [Williams u. Norris.] effect, it is necessary to inquire whether Norris's entry was absolutely void, or gave an incipient title, capable of being, carried into grant. If the purchase-money was paid, the entry was valid. If not paid, the entry might be void, or only voidable. The words of the act under which it was made have been cited, and may admit of either construc- tion. It is a question for the legislature and courts of the state, and its decision the one way or the other would not be repugnant to the constitutions of the United States. It is apparent that the legislature of North Carolina has not considered these entries, where the purchase- money was not paid at the time, as being absolutely void, but has sup- posed them to be capable of being perfected, and carried into grant, as the legislature might direct. In 1794, the comptroller was directed to issue warrants in all cases in which the purchase-money had been paid. In 1796, it was enacted, that no grants should issue on warrants on entries made in John Armstrong's office, unless it should appear by Armstrong's books, or other sufficient testimony, that the purchase- money had been paid. The next succeeding section of the same act authorizes any person entitled to such entry to pay into the treasury the amount or balance of the purchase-money, upon which a warrant may be issued. In 1798, the legislature appointed commissioners to investigate the frauds suggested to have been committed in the secretary's office, and *4.7m *<^'r6cted that no grant should issue on warrants obtained on -' entries which the commissioners might deem fraudulent. The act of 1799, ch. 7, sec. 16, directs warrants to issue on all en- tries where the requisites of the law have been, or shall be complied with. The legislation of North Carolina, to the year 1803, proceeds upon the idea, that the entries made in John Armstrong's office, for which the purchase-money had not been paid, were not absolutely void, but might be made good by paying the purchase-money, or such part of it as remained due. The right seems to have been considered as pre- served and suspended until the purchase-money should be paid. In this state of things, the power of perfecting titles,' which had been retained by North Carolina in her cession act, was transferred to Tennessee, on condition that titles should be perfected, or entries made, under the laws of that state, according to the requisites of those laws. In 1806, c. 1, sec. 45, the legislature of Tennessee appointed com- missioners to decide on the validity of entries, with directions to admit no warrants on entries made in John Armstrong's office, if it^may ap- pear to the said commissioners that the purchase-money has not been paid. By the act of 1807, c. 20, sec. 25 and 29, it is enacted, that where it shall appear to either of the commissioners, that entries have been made in John Armstrong's office, on which the purchase-money has been paid in whole or in part, warrants may issue for so much land as has been paid for. But it is provided, that the person exhibiting such claim, shall produce a certificate from the comptroller of North Carolina,' showing what sum was paid on the said entry. This act was continued in force till the 1st of January, 1815. In October, 1815, an act nassed, direct- 386 JANUARY TERM, 1827. 470 [Williams v. Norris.] ing that there should be one commissioner in East, and one in West Tennessee, each of whom should exercise the powers which had been vested in commissioners by the act of 1806. We do not understand that the propriety or obligation of these acts has ever been questioned by the courts of either North Carolina or Tennessee. We do not understand that the courts of either state have ever questioned the legislative construction of the act, opening the office in which this entry was made. That construction is, that en- tries received by John Armstrong, though not accompanied by the purchase-money, were not absolutely void, but would become valid, should the purchase-money be afterwards paid; and that such proof of payment might be received as the legislature should prescribe. It can- not be doubted, that numerous titles are held under this construction of the law. Its correctness or incorrectness does not seem to involve *any constitutional question, or any question which can give r^^i^i this court jurisdiction in a cause which has been determined in ■- a state court. Had the claim of Ezekiel Norris been decided by the commissioners acting under the general law, it would probably never have been con- tested. What difference is there, so far as respects its constitutionality, between the act passed in this particular case, and the act containing' a general reference of all cases of the same description to the commis- sioner ? The difference consists solely in this : the general act admits no other proof of payment than a certificate from the comptroller of North Carolina; the particular act authorizes the commissioner to establish the claim on sufficient evidence; that is, we presume, on such evidence as is generally admissible in a court of justice. We know of no principle which could impose on the legislature of the state the necessity of exacting from the claimant, under an entry made in John Armstrong's office, as indispensable to the establishment of his claim, a certificate from the comptroller of North Carolina that the purchase- money had been paid. The act of 1794 left the fact of payment open to legal proof. The act of 1796 required that it should appear by Armstrong's books, or other legal testimony. If, then, the general act of Tennessee had allowed the commissioner to issue warrants, on suffi- cient proof, such act might have been questioned on the ground of policy, but not of right. If this be correct, if the legislature might have dispensed with this testimony in a general law, why may it not be dispensed with in a particular law, where its effect on the cause is precisely the same as if it had been general 1 There are, undoubtedly, great and solid objec- tions to legislation for particular cases. But these objections do not necessarily make such legislation repugnant to the constitution of the United States. The act " for the relief of Ezekiel Norris," did not authorize the commissioner to grant him a certificate or warrant on his entry, unless he should prove that the purchase-money had been paid. The laws, had preserved such entries, and, consequently, an act to enable the proprietor of one of them to prosecute his claim, is not necessarily an act impairing the obligation of a contract. The question whether the judgment of the commissioner was con- clusive evidence that the purchase-money had been paid, is entirely 387 471 SUPREME COURT. [Williams v. Norris.] distinct from the constitutionality of the law, and the decision of the state court upon it cannot be revised in this court. We are of opinion, that this record does not exhibit a case of which this court can take jurisdiction, and that the writ of error ought, there- fore, to be dismissed. */l'701 *Jurisdiction of the supreme court of the. United States, when the construction of i a clause in the constitution, or a statute of the United States, is drawn into question. See notes, 2 Cond. Kep. 325. See also the following cases. The constitution declares that " the judicial power shall extend to all cases in law and equity arising under it — the laws of the United States, and treaties made, or which shall be made under their authority ; — to all cases affecting ambassadors, or other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction." The constitution certainly con- templates these as three distinct classes of cases ; and if they are distinct, the grant of jurisdic- tion over one of them, does not confer jurisdiction over either of the other two. The discrimi- nation made between them is conclusive against their identity. American Insurance Company V. Cotton, 1 Peters, 545. A case in admiralty does not, in fact, arise under the constitution or laws of the United States. Such cases are as old as navigation itself; and the law admiralty and maritime, as it existed for ages, is applied by our courts to the cases as they arise. It is not then to the eighth section of the territorial act, that we are to look for the grant of admiralty and maritime juris- diction in the territorial courts of Florida. Consequently, if that jurisdiction is exclusive, it is ■ not made so by the reference in the act of congress to the district court of Kentucky. Ibid. Both the plaintiff and defendants claimed title under the provisions of the act of congress, passed 3d March, 1803, entitled " an act regulating the grants of land, and providing for the disposal of the lands of the United States, south of the state of Tennessee ;" and the decision of the supreme court of the state of Mississippi was upon the construction given to that act, by the commissioners acting under its authority. This is a case which draws into question , the construction of an act of congress, and the supreme court of the United States has juris- diction on a writ of error, by which the decision of the court of the state of Mississippi is brought up for revision, under the twenty-fiflh section of the judiciary act of 1789. Ross v. Borland et al., 1 Peters, 655. . S. and M. held land in Luzerne county, Pennsylvania, in common under a Connecticut title. A division of the land was made between them, and S, became the tenant of M. of his part of the land thus set off in severalty, under a lease, to be terminated on a notice of one year. S. afterwards obtained a Pennsylvania title to the land leased to him by M., and on a trial in an ejectment for the land, brought by M. against 8., the court of common pleas of Bradford county, Pennsylvania, held that S. having held the land as tenant of, M., could nut set up a title against his landlord. Upon a writ of error to the supreme court of Pennsylvania in 1825, it was held that " the relation between landlord and tenant could not exist between persons holding under a Connecticut title." The legislature of Pennsylvania, on the 8th of April, 1826, passed an act declaring that " the relation of landlord and tenant should exist and ')B held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between citizens of the commonwealth." The case came again before the supreme court of Pennsylvania, and the judgment of the court of common pleas of Bradford county in favour of M. the landlord, was affirmed ; that court having decided that the act of assembly of the 8th of April, 1826, was a constitutional act, and did not impair the validity of any contract. S. brought a writ of error to this court, claiming that the act of the assembly of Pennsylvania of the 8th of April, 1 826, was unconstitutional. Held, that the act was constitutional. Satterlee V. Matthewson, 2 Peters, 380. The power of this court to revise the judgment of state tribunals, depends on the twenty- fifth section of the judiciary act. That section enacts " that a final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could'be had," where is drawn in question the validity of a statute, or of an authority exercised under any stale, on the ground of their being repugnant to the constitution, treaties or laws of the »/ ciary act, could be exercised. In such a case the decision would have been against the L ^'^ express provision of the ordinance in favour of liberty ; and on that ground, if that instrument could be considered under the circumstances as an act of congress, within the twenty-fifth sec^ tion, the jurisdiction of this court would be unquestionable. But the decision was not against, but in favour of the express provisions of the ordinance. Ibid. Jurisdiction. As to what should appear on the record of a case brought to the supreme court from a court of a state, in order to give jurisdiction, the following cases are added to those collected in notes to the preceding volume. In the construction of the twenty-fifth section of the judiciary act, passed 24th of September, 1789, this court has never required that the treaty or act of congress under which the party claims who brings the final judgment of a state court into review before this court, should have been spread upon the record. It has always deemed it essential to the exercise of jurisdiction in such a case, that the record should show a complete title under the treaty or act of congress, and that the judgment of the court is in violation of that treaty or act. Hickie \. Starke et al., 1 Peters, 98. Objections to the jurisdiction of this court have been frequently made, on the ground- thai 3h2 389 474 SUPREME COURT. [Montgomery v. Hernandez.] there was nothing apparent on the record to raise the question whether the court from which the case had been brought, had decided upon the constitutionality of a law, so that tin' case was within the provisions of the twenty-fifth section of the judiciary act of 1789. This has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repug- nancy of a statute of a state to the constitution of the United States was drawn into question, or if that question was applicable to the case, this court has jurisdiction of the cause, although the record should not in terms state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state to any part of that constitution was drawn into question. Saiterlee v. Matthewson, 2 Peters, 409. This court has frequently decided that, to sustain its jurisdiction in appeals and writs of error, it is not necessary to state in terms upon the record that the constitution, or a law of the United States, was drawn into question. It is sufficient to bring the case within the provi- sions of the twenty-fifth section of the judiciary act, if the record shows that the constitution or a law of the United States must have been misconstrued, or the decision could not have been made ; or that the constitutionality of a state law was questioned, and the decision was in favour of the party claiming under such law. Wilson et al. v. The Black Bird Creek Marsh Com- pany, 2 Peters, 250. It has often been decided in this court, that it is not necessary that it shall appear in terms upon the record that the question was presented in the state court, whether the case was within the purview of the twenty-fifth section of the judiciary act of 1789, to give jurisdiction to Ihia court in a case removed from a state court. It is sufficient, if, from the facts stated, such a question must have arisen, and the judgment of the state court would not have been what it is, if there had not been a misconstruction of some act of congress, &c. &c., or a decision against the validity of the right, title, privilege. Or exemption, set up under it. Harris v. Dennie, 3 Peters, 392. It has been settled, that in order to give jurisdiction to this court under the twenty-fifth sec- tion of the judiciary act, it is not necessary that the record should state in terms that an act of congress was, in point of fact, drawn in question. It is sufficient if it appears from the record that an act of congress was applicable to the case, and was misconstrued ; or the decision of the state court was against the privilege or exemption specially set up under such statute. Davit V. Packard and others, 6 Peters, 41. *475] *Montgomery, Plaintiff in error, v. Hernandez and others. Defendants in error. 12 Wheaton's Reports, 129. Under the twenty-fifth section of the judiciary act of 1789, ch. 20, this court has no appellate jurisdiction from the final judgment of the highest court of a state, in a suit where is drawn in question the construction of a statute of, or a commission held under the United States unless some title, right, privilege, or exemption, under such statute, &c., be specially set up by the party, and the decision be against the claim so made by him. [See note to the preceding case.] Where a suit was brought in a state court upon a marshal's bond, under the act of April 10th, 1806, ch. 21, by a person injured by a breach of the condition of the bond, and the defendants set up as a defence to the action that the suit ought to have been brought in the name of the United States, and the court decided that it was welt brought by the party injured in his own name : held, that the exemption here set up being merely as to the form of the action, and no question arising as to the legal liability of the defendants under the act of congress, this court had no authority to re-examine the judgment, so far as respected the construction of that part of the act, which provides, that suits on marshals' bonds " shall be commenced and prosecuted within six years after the said right of action shall have accrued, and not afterwards." Under the fourth section of the same act, although the condition of the marshal's bond is broken by bis neglecting to bring money into court, directed to be so brought in, or to oav 390 • fy JANUARY TERM, 1827. 475 [Montgomery v. Hernandez.] it over to the party, yet, if the proceedings be suspended by appeal, so that the party injured has no right to demand the money, or to sue for the recovery of it, his right of action has not accrued, so as to bar it, if not commenced within six years. THIS cause was argued by Mr. D. B. Ogden, for the plaintiff in error ; and by Mr. Key, for the defendants in error. Cases cited : Pothier des Obligations, number 645. De Prescription, numbers 22, 23. 8 Cranch 91, 92, 3 Cond. Rep. 45. Mr. Justice Trimble delivered the opinion of the court. This case is brought up by writ of error from the highest court of law of the state of Louisiana. The case is, that the defendants in error instituted a suit, in their own names, in the district court of the state for the first judicial district, upon a bond given by Michael Reynolds to the United States, as marshal of the district of Louisiana, conditioned to be void upon his "well and faithfully executing the duties of his said office;" and the plaintiff in error having executed the bond, as one of the marshal's sureties, and the marshal having since died, the suit was brought against the plaintiff in error, and the said Reynolds's personal repre- sentative. • *The breach of the condition of the bond alleged, is, that by y^.„ . the order of the district court of the United States, for the dis- ^ " trict of Louisiana, in a suit in admiralty, wherein the defendants in error were libellants against the schooner Estrella and her cargo, the vessel and cargo were directed, by the court, to be sold by the mar- shal, and the proceeds of the sale held by the marshal, subject to the order of the court ; that the marshal, in pursuance of that order, sold the vessel and cargo, and received the money ; that the court of admiralty, by its final decree in the cause, directed the vessel and cargo, or the proceeds thereof, to be restored to the libellants; and that the marshal had failed to pay over to the libellants, three thousand one hundred and twenty-six dollars, part of the proceeds, as was his duty, under the final order and decree of the court. The suit having been commenced and prosecuted, by petition, according to the practice of the civil law which prevails in Louisiana, the respondent, Montgomery, put in his answer, admitting the execution of the bond, but insisting, that as the bond was executed to the United States, and the defendants in error no parties to it, they had no right or interest in the bond, and could not sue for a breach of the condition thereof; and denying the breaches alleged in the petition. By a supplemental answer, in the na- ture of a plea of the act of limitations, Montgomery alleged, if any breach had taken place, that more than six years had intervened since the cause of action, before the institution of the suit. The record states, that the jury sworn in the cause, after hearing testimony, and receiving a charge from the court, returned a verdict for the defendants in error, for the sum of three thousand one hundred and twenty-six dollars; for which sum judgment was rendered upon the verdict in their favour. From this judgment Montgomery appealed to the supreme court of the state, where the judgment of the district court was affirmed ; and this judgment is sought to be reversed in this court upon the present writ of error. 391 476 SUPREME COURT. [Montgomery v. Hernandez.] On the trial of the cause in the district court, Montgomery objected to the admission, as testimony to the jury, of certain documents, purport- ing to be accounts of the marshal's sales of the Estrella and cargo ; and, his objections being overruled, he excepted to the opinion of the court, admitting the papers offered ; and Kis exception was sealed, and made part of the record. The appellate jurisdiction of this court, in cases decided in the state courts, is very special and limited in its character. By the twenty-fifth section of the judiciary act, made in pursuance of the constitution, it is provided, " that a final judgment or deci-ee, in any suit in the highest court of law or equity of a state, in which a decision in the suit could be *4771 *^^^' where is drawn in question the validity of a treaty or -I statute of, or an authority exercised under, the United States, and the decision is against their validity ; or where is drawn in ques- tion the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, trea- ties, or laws of the United States, and the decision is in favour of such validity ; or where is dra,wn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States ; and the decision is against the title, right, privilege, or exemption, specially set up by either pfarty, under such clause of the constitution, treaty, statute, or commission, may be re- examined, and reversed or affirmed, by the supreme court of the United States." Under these provisions, we have no authority to re-examine the whole case. We can re-examine so much, and such parts of it only, as come within some one or other of the classes of questions enumerated in the act of congress, and so much of the case as must necessarily be decided to arrive at such question. It has been insisted for the plaintiff in error, that the question raised upon the record, whether Hernandez, not being a party to the marshal's bond given to the United States/ could maintain a suit upon it in his own name only, without suing in the name of the United States, for his use, is a question which can be re-examined in this court. We are not of that opinion. Jt is not every misconstruction of an act of congress by a state court, that will give this court appellate jurisdiction. It is where the party claims some title, right, privilege, or exemption, under an act of congress, and the decision is against such right, title, privilege, or exemption. In this case the plaintiff in error did not, and could not, claim any right, title, privilege, or exemption, by, or under the marshal's bond, or any act of congress giving authority to sue the obligors for a breach of the condition ; or, at most, his claim to exemption rests upon form, and not substance, as the law expressly charges him, and the objection is only that the name of the United States should have been inserted for the use of the plaintiff. However we might be inclined to the opinion that, regularly, and in point of form, the suit should have been in the name of the United States, for the use of Hernandez, we have no jurisdiction or authority to re-examine, and either reverse or affirm the decision of the state court on that ground. The only part of the case over which we can rightfully exercise ap- 392 JANUARY TERM, 1827. 477 [Montgomery v. Hernandez.] pellate jurisdiction, is that raised by the supplemental answer, plead- ing the prescription or bar of six years ; in which the party claims an *exemption under the laws of the United States, from liability r^Aja as surety of the marshal ; the decision in the state court being L against the exemption so specially set up by him. The act of congress passed in 1806, relating to bonds given by mar- shals, enacts, " that all suits on marshals' bonds, if the cause of action has already accrued, shall be commenced and prosecuted within three years after the passage of this act, and not afterwards ; and all such suits, in case the right of action shall accrue hereafter, shall be com- menced and prosecuted within six years after the said right of action shall have accrued, and not afterwards," &c. Jngersol's Dig. 402. , It is obvious, that whether this act of congress exempts the plaintiff in and from responsibility or not, must depend upon the time when the right of action accrued to Hernandez and Co., for any injury sustained byreason of the marshal's failure to perform his duty. It was the duty of the marshal, under the order of the court of admiralty, directing him to sell the Estrella and cargo, and hold the proceeds subject to the future order of the court, to bring the money into court, as soon as received by him, in order that it might be deposited in the branch bank of the United States. The order of the court directing the mar- shal to hold the pro'ceeds until the further order of the court, can only be construed to mean, that he should hold them in the manner pre- scribed by law. The law directs the money to be deposited in the name of, and to the credit of the court ; and provides, that the money so deposited shall not be drawn out of bank without the order of the court. The object of the law was to prevent the officers of the court from holding money, in such cases, in their own hands, and converting it to their own use. It was only a partial execution of the precept of the court to sell the vessel and cargo ; its mandate was not faithfully performed until the proceeds were brought into court by him, in order to be deposited according to law, or until he paid it over to Hernan- dez, as directed by the final decree and order of court. The marshal's failure to bring in the money, or pay it over to Hernandez and Co., was a violation of his duty, and a breach of the condition of his bond. The supreme court of the state decided, that although the breach of the condition of the bond took place more than six years before the institution of this suit, yet the plaintifTs right of action did not accrue until within the six years ; and that, consequently, the act of limita- tions constituted no bar to the action. This court perfectly accords in opinion with the supreme court of the state. If it be true, that the condition of the bond was broken at the time the marshal failed to bring the money into court to be deposited in the bank, or pay it over to Hernandez and Co.; and if it be true that *the breach of the condition of the bond was to the injury of r^A'rQ Hernandez and Co.; yet, it is not true, that Hernandez and Co. '- liad, at that time, any right of action. The record of the proceedings in the court of admiralty shows that the Estrella and cargo were sold, and the proceeds received by the marshal ; and that the suit was finally decided in the district court, on the ' f 1817 ; by which final decree the proceeds " to be paid over to Her- nandez and Co. Vol. VI. — 50 393 479 SUPREME COURT. [Winn V. Jackson. — Postmaster-General v. Early.] An appeal was presented from that decree in this court ; where it was affirmed at the February term, in the year 1819, within less than six years before the institution of this suit. It is perfectly clear that Hernandez and Co. had no right to demand of the marshal the proceeds of the sales, or to sue for the recovery thereof, until after the affirmance in this court. The right of action was suspended, during the pendency of the appeal in this court : and during such suspension, the statute of limitations did not run against him. We are, therefore, of opinion, that the supreme court of Louisiana have misconstrued neither the act of congress limiting actions upor marshals' bonds to six years from the time the right of action accrues, nor any other act of congress, to the prejudice of the plaintiff in error. Judgment affirmed, with costs, and six per cent, damages. Winn's Heirs v. Jackson and others. IS Wheaton's Reports, 135. THE judgment of the highest court of law of a state, deciding in favour of the validity of a statute of a state, drawn in question on the ground of its being repugnant to the constitution of the United States, is not a final judgment within the twenty-fifth section of the judiciary act of 1789, ch. 20, if the suit has been remanded to the inferior state court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court. *480] *The Postmaster-General of the United States v. Early and others. 12 Wheaton's Reports, 136. The circuit courts of the union have jurisdiction, under the constitution, and the acts of April 30th, 1810, ch. 262, s. 29, and of March 3d, 1815, ch. 782, s. 4, of suits brought in the name of " the postmaster-general of the United States," on bonds given to the post- master-general by a deputy postmaster, conditioned " to pay all moneys that shall come to his hands for the postages of whatever is by law chargeable with postage, to the postmaster- general of the United States for the time being, deducting only the commission and allow- ances made by law for his care, trouble, and charges, in managing the said office," &c. The postmaster-general has authority to take such a bond, under the different acts establishing ' and regulating the post-office department, and particularly under the act of April 30th, 1810, ch. 262, s. 29, 42. [See note at the end of the case.] 394 JANUARY TERM, 1827. 480 [Postmaster-General v. Early.]' THIS was an action of debt, commenced in the circuit court for the district of Georgia, by the district attorney of the United States for that district, in the name of the postmaster-general of the United States, against the defendants, on a bond executed by them, in June, 1820, to the postmaster-general of the United States, the condition of which, after reciting that Eleazer Early (one of the co-obligors and^ defendants in the suit) is postmaster at Savannah, provides, that if he shall perform the duties of his office, " and shall pay all moneys that shall come to his hands for the postages of whatever is by law charge- able with postage, to the postmaster-general of the United States for the time being, deducting only the commission and allowances, made by law, for his care, trouble, and charges, in managing the said office," &c., "then the above obligation shall be void." The breach assigned was, that the said E. Early did not pay to the postmaster-general the moneys which came to his hands, as postmaster at Savannah, but that the sum of seven thousand seven hundred and thirty-six dollars and sixty-four cents was still in arrear and unpaid. The defendants pleaded to the jurisdiction of the court, that this was " not a suit in which the United States are a party, nor is the debt declared on one contracted, authorized, or arising, under a law of the United States, and over which jurisdiction has been given to this honourable court." On the argument of the cause in the court below, the opinions of the judges of that court were opposed upon the question of jurisdiction, and it was certified to this court for a final decision. ■ *The cause was argued by the Attorney-General and Mr. r^^oi Wheaton, for the plaintiflf; and by Mr. Webster and Mr. Ber- '- rien, for the defendants. Cases cited for the pJaintiff : Osborn v. The Bank of the United States, 9 Wheat. Rep. 738, 825, 901, 902, 5 Cond. Rep. 741. Dugan V. The United States, 3 Wheat. Rep. 172, 4 Cond. Rep. 223. 2 Lord Raym. 1459 ; S. C, 2 Sir. 745. 2 Ball. 122. 6 Binn. 292. 12 Mass. Rep. 367. 1 Peters's C. C. Rep. 47. 1 Wheat. Rep. 235, 3 Cond. Rep. 554. 5 Wheat. Rep. 277. 4 Cond. Rep. 642. Cro. Jac. 82. 5 Cranch, 303, 2 Cond. Rep. 265. Bunb. 225, 262, 558, 223. Parker, 37, 279. Hale, in Hargr. Law Tracts, 216. 2 Anstr. 558. Coop. Eg. PL 21, 22. Mtf. PL 22. Barton's Eq. 59. 2 East's Rep. 362. 1 Chitty's Cam. Law, 801, 824. Cases cited for the defendants : Bank of the United States v. De- veaux, 7 Cranch, 85, 2 Cond. Rep. 189. M'Intire v. Wood, 7 Cranch, 503, 2 Cond. Rep. 588. Mr. Chief Justice Mabshall delivered the opinion of the court ; and, after stating the case, proceeded as follows : The post-office department was established at the commencement of the revolution, under the superintendence of a postmaster-general, who, was authorized to appoint his deputies, and was made responsible for their conduct. Soon after the adoption of the present government, in September, 1789, congress passed a temporary act, directing that a post- master-general should be appointed, and that his powers, and the regu- lations of his office, should be the same as they last were, " under the resolutions and ordinances of the last congress," The power of appoint- 395 481 SUPREME COURT. [Postmaster-General m. Early.] ing deputies, therefore, and the responsibility for their conduct, still remained with the postmaster-general. This act was continued until the 1st day of June, 1792. In Febru- ary, 1792, an act was passed detailing the duties amd powers of the postmaster-general, and fixing the rates of postage. It directs his de- puties to settle at the end of every three months, and to pay up the moneys in their hands ; on failure to do which, it becomes the duty of the postmaster-general " to cause a suit to be commenced against the person or persons so neglecting or refusing. And if the postmaster-gene- ral shall not cause such suit to be commenced within three months from the end of every such three months, the balances due from every such delinquent shall be charged to and recoverable from him." This act was to take effect on the 1st of June, 1792, and to continue for two years. In May, 1794, a permanent act was passed. It retains the pro- vision requiring the postmaster-general to settle quarterly with his de- puties, *but omits that which makes it his duty to cause suits to r^Aon be instituted within three months after failure. '■ In March, 1799, the subject was again taken up, and congress passed ad act, which retains the clause making it the duty of the deputy post- masters to settle their accounts quarterly, and reinstates that which directs the postmaster-general to cause suits to be instituted against delinquents; substituting six months in the place of three, after the expiration of the quarter, under the penalty of being himself chargeable with the arrears due from such delinquent. This act declares, that all causes of action arising under it may be sued before the judicial courts of the several states, and of the several territories of the United States. In April, 1810, congress passed an act for regulating the post-office establishment, which enacts, among other things, that all suits there- after to be brought for the recovery of debts or balances due to the general post-office, should be instituted in the name of" the postmaster- general of the United States." This act also authorizes all causes of action arising under it to be sued in the courts of the states and ter- ritories. In March, 1815, congress passed " an act to vest more effectually in the state courts, and in the district courts of the United States, juris- diction in the cases therein mentioned." This act enables the state courts to take cognisance of all suits arising under any law for the collection of any direct tax or internal duties of the United States. The fourth section contains this clause : "and be it further enacted, that the district court of the United States shall have cognisance, concurrent with the courts and magistrates of the several states, and the circuit courts of the United States, of all suits at common law where the United States, or any officer thereof, under the authority of any act of congress, shall sue, although the debt, claim, or other matter in dispute, shall v.ni amount to one hundred dollars." On these several acts the question of jurisdiction depends. The suit is brought for money due to the United States ; and, at anv time previous to the act of 1810, the suit for the money, had no bond been taken, might have been brought in the name of the United States. It is not certain that, independent of the bond, it could have been instituted in the name of any other party. The courts of the United States had, of course, jurisdiction. The laws make it the duty of the 396 JANUARY TERM, 1827. 482 [Postmaster-General v. Early.] postmaster-general to " cause suits to be instituted," not to bring them ; and it was not until March, 1799, that congress authorized these suits to be instituted in the state courts. It is obvious, that the right to institute them in those courts, anterior to the passage of that act, was doubted ; at any rate, was not exercised ; for it could not have ♦been deemed necessary to give expressly the power to sue in rj^^oo those courts, had the power been admitted to exist, and been ■- commonly exercised. We must suppose, then, that these suits were usually instituted in the courts of the United States ; and no doubt could be entertained on the question of jurisdiction, if they were brought, as they certainly might have been, in the name of the United States. The act of 1810 directed, that all suits for debts, or balances due to the general jrost-office, should be brought in the name of the postmaster- general. The manner in which this change in the style of the suit might affect jurisdiction, was not noticed, and no provision was miide for this new state of things. These debts and balances which weru due to the general post-olBce, were not due to the officer personally, but to the office, and were to be sued for, and collected for the United States. The money belonged to the nation, not to the individual by whose agency it was to be brought into the treasury. The whole course of opinion, and of legislation, on this subject, is, that, although for convenience, and to save expense to the debtors, recourse may be had to the state courts for the recovery of small sums, yet a right to resort to the courts of the union in suits for money due to the United States, was never intended to be relinquished. If the efiect of any provision in a statute be to abolish this jurisdiction, it must be an effect which was neither intended nor foreseen. That construction which will produce a consequence so directly opposite to the whole spirit of our legislation, ought to be avoided, if it can be avoided with- out a total disregard of those rules by which courts of justice must be governed. If the question had rested solely on the act of 1810, it is probable that the aid of the legislature might have been thought indispensable to the jurisdiction of the federal courts, over suits brought for the recovery of debts and balances due to the general post-office. But it does not rest solely on that act. The act of 1815 contains a clause which does, we think, confer this jurisdiction. It cannot be doubted that this clause vests jurisdiction expressly in the district courts, in all suits at common law where any officer of the United States sues under the authority of any act of congress. The postmaster-general is an officer of the United States, who sues under the authority of the act of 1810, which makes it his duty to sue for debts and balances due to the office he superintends, and obliges him to sue in his own name. It has been contended, that this clause, if it gives jurisdiction, gives it only where the demand is under one hundred dollars. We do not think the words will sustain this criticism. The right to take cognisance of suits brought by any officer of the *United States, under authority of any act of congress, is first r^^g^ given in general words, comprehending sums to any amount. L The limitation which follows is not a proviso that the sum shall not exceed the sum of one hundred dollars ; it is no restriction on the pre- vious grant, but an enlargement of it, if an enlargement should be 21 397 484 SUPREME COURT. [Postmaster-General v. Early.] thought necessary. This act might be construed, in connection with the judiciary act of 1789, and a general clause giving jurisdiction might be limited as to amount to the sum mentioned in the ninth section of I that act. The subsequent words, therefore, of the section we are con- sidering, were introduced for the purpose of obviating this construction, and removing the doubt, which might otherwise exist, of the right to take cognisance of sums less than one hundred dollars. After giving the jurisdiction generally, the words are, " although the debt, claim, or other matter in dispute, shall not amount to one hundred dollars." These words do not confine the jurisdiction previously given to one hundred dollars, but prevents it from stopping at that sum. The jurisdiction of the district courts, then, over suits brought by the postmaster-general for debts and balances due the general post- office, is unquestionable. Has the circuit court jurisdiction ? The language of the act is, " that the district court shall have cogni- sance concurrent with the courts and magistrates of the several states, and the circuit courts of the United States, of all suits," &c. What is the meaning and purport of the words " concurrent with" the circuit courts of the United States ? Are they entirely senseless ? Are they to be excluded from the clause in which the legislature has inserted them, or are they to be taken into view, and allowed the effect of which they are capable? The words are certainly not senseless. They have a plain and ob- vious meaning. And it is, we think, a rule, that words which have a meaning, are not to be entirely disregarded in construing a statute. We cannot understand this clause as if these words were excluded from it. They, perhaps, manifest the opinion of the legislature, that the jurisdiction was in the circuit courts ; but ought, we think, to be construed to give it, if it did not previously esist. Any other construc- tion would destroy the effect of those words. The district court cannot take cognisance concurrent with the circuit courts, unless the circuit courts can take cognisance of the same suits. For one body to do a thing concurrently with another, is to act in .conjunction with that other ; it is equivalent to saying, the one may act together with the other. The phrase may imply, that power was previously given to that other ; but if, in fact, it had not been given, the words are capable of imparting it. If they are susceptible of this construction, they ought to ^^AQr-, receive it, because they will otherwise be4otally inoperative, or J will contradict the other parts of the sentence, which show plainly the intention, that the district court shall have cognisance of the subject, and shall take it to the same extent with the circuit court. It has been said, and perhaps truly, that this section was not framed with the intention of vesting jurisdiction in the circuit courts. The title of the act, and the language of the sentence, are supposed to concur in sustaining this proposition. The title speaks only of state and district courts. But it is well settled, that the title cannot restrain the enact- ing clause. It is true that the language of the section indicates the opinion, that jurisdiction existed in the circuit courts, rather than an intention to give it; and a mistaken opinion of the legislature concern- ing the law, does not make law. But if this mistake is manifested in words competent to make the law in future, we know of no principle which can deny them this effect. 398 JANUARY TERM, 1827. 485 [Postmaster-General v. Early.] The legislature may pass a declaratory act, which, though inoperative on the past, may act in future. This law expresses the sense of the legislature on the existing law, as plainly as a declaratory act, and expresses it in terms capable of conferring the jurisdiction. We think, therefore, that in a case plainly within the judicial power of the federal courts, as prescribed in the constitution, and plainly within the ge- neral policy of the legislature, the words ought to receive this construc- tion. So far as the suits brought by the postmaster-general were referred to in argument, in the case of the Bank of the United States v. Osborn, this construction was assumed as unquestionable. As the act was re- ferred to for the sole purpose of illustrating the argument on the point then under consideration, it was not examined with the attention which has since been bestowed upon it ; but the opinion then expressed, that the section we have been considering conferred jurisdiction on the courts of the United States over suits brought by the postmaster-gene- ral, was correct. Had this suit been brought to recover the balance due from the deputy postmaster, on his original liability to pay the money in his hands, no doubt would have been felt respecting the jurisdiction of the court. The act of 1810 gives to the postmaster-general a right to sue for such balances, and the act of 1815 enables him to sue in the circuit or district courts of the United States. But it is contended that he has no right to secure such balances by bond ; and, consequently, the bond being unauthorized, the act of congress cannot be construed to authorize a suit upon it. Were it even true that an official bond cannot be taken in a case *where it is not expressly directed by law, we do not think that i-^^qo •a bond taken to secure the payment of a sum of money is void, '■ because it is also an official bond. Even supposing this bond to be void, so far as it is intended to stipulate for the performance of official duties, it is not necessarily void, so far as it stipulates for the payment of mo- ney of the United States, which might come to the hands of the deputy postmaster. That part of the condition which shows the bond was taken to secure the payment of money which should be received for the United States, is not vitiated by that part of it which shows that it was also taken to secure the general official conduct of the deputy. Now, a part of the condition is expressly, " that if he shall pay all moneys that shall come to his hands, for the postages of whatsoever is by law chargeable with postage," then the obligation is to be void. The obligation itself, on which the suit is brought, was intended to secure the payment of monej'^ collected for the United States, as well as the official conduct of the deputy; and as no law prohibited such an official bond, we can- not think, although it might not in itself be valid, that it would destroy an obligation taken from a legitimate purpose. As the breach assigned is altogether in the non-payment of the money collected, we do not think that, if a bond would be good, taken for this single object, it is made bad by being extended also to the official conduct of the obligor. The inquiry then is, whether, under a fair construction of the acts of congress, the postmaster-general may take bonds to secure the pay- ment of money due, or which may become due, to the general post- office. 399 486 SUPREME COURT. [Postmaster-General v. Earl}'.] All the acts relative to the post-office, make it the duty of the post- master-general to superintend the department, to regulate the conduct and duties of his deputies, and to collect the moneys received by them for the general post-office. May not these powers extend to taking bonds to the officer who is to perform them % May not these bonds be considered as means proper to be used in the coHection of debts, and in securing them ? If this interpretation of the words should be too free for a judicial tribunal, yet if the legislature has made it, if congress has explained its own meaning too unequivocally to be mistaken, their courts may be justified in adopting that meaning. The twenty-second section of the act of 1799, after directing the post- master-general to sue for all balances due from his deputies, within six months after the expiration of the three months within which they ought to have been paid, enacts, " that all suits, which shall be here- after commenced for the recovery of debts or balances due to the general post-office, whether they appear by bond or obligations made in the *487n *"^'"'^ °f *'^® existing or any preceding postmaster-general, or J Otherwise, shall be instituted in the name of the postmaster- general of the United States." These words follow immediately the clause which makes it the duty of the postmaster-general to sue for the money due from his deputies, and are obviously applied to the moneys in their hands. They show the sense of the legislature, that this money may be a " debt" or a " balance," may " alppear by bond or obligation," or otherwise ; and are, we think, a legislative exposition of the words, describing the power and duty of the postmaster-general in the superintendence of his department, and the means he may employ for collecting the money due from his deputies. The thirty-first section of the same act, repeals the previous laws for establishing the post-office department, after the 1st day of the ensuing May; and adds a proviso to the repealing clause, that as to "all bonds, contracts, debts, demands, rights, penalties, or punishments, which have been made, have arisen, or have been incurred," i&c, "the said acts shall have the same effect, as if this act had not been made." It is said by the counsel for the defendants, that these words do not give efficacy to the bonds to which they refer, but leave them as they were anterior to the repealing act. This is true. But they explain the sense of the legislature, respecting the powers of the postmaster-ge- neral, and the manner in which he might execute those powers. An additional proviso extends even to official bonds. After con- tinuing the postmaster-general and all his deputies in office, it adds, " and also the bbnds which they or either of them have or may give for the faithftil execution of their several duties, shall continue to have the same force and effect, to all intents and purposes, after the 1st day of May next, as though this act had not been made." This proviso, also, is no more than a recognition of the validity of those bonds ; but it is a recognition of it, and goes the full extent of showing the legislative opinion that they might be taken. The act of 1810 repeals former acts, and contains the same provisions on this sub- ject with the act of 1799. The court has felt the pressure of this part of the case. There is 400 JANUARY TERM, 1827. 487 [Postmaster-General v. Early.] always difficulty in extending the operation of words beyond their plain import ; but the cardinal rule of construction is, that where any doubt exists, the intent of the legislature, if it can be plainly perceived, ought to be pursued. It is also a rule, that the whole law is to be taken together, and one part expounded by any other, which may indicate the meaning annexed by the legislature itself to ambiguous phrases. The words describing the power and duty of the postmaster-general, *may be expounded by other parts of the act showing the r#4^eQ legislative opinion as to their extent ; and if this be true, the ^ sections which have been cited cannot be misunderstood. They show plainly that the legislature supposed it had given the postmaster-general authority to take these bonds. A case cannot exist, in which effect may be given to the legislative intent more safely than in this. The bonds are taken in a case where no doubt can exist respecting the right and propriety of giving authority to take them ; they are for money due to the United States ; and the opinion of the legislature that authority was given, is ex- pressed in as plain words as can be used. The acts of congress sustain the opinion, that they have been taken with the knowledge and approbation of the legislature, from the first establishment of the offices ; and provision is made by law for their being put in suit. The courts of the United States have, until very lately, uniformly given judgments on them. Under these circumstances, we think ourselves justified in continu- ing to sustain them, and to certify, in this case, that the circuit court has jurisdiction of the cause. Post-office department. The following cases relative to the post-office, and the postmaster-general, are referred to : Where an issue of fact is taken upon the negligence of the postmaster himself, it is not competent to give in evidence the neglect of his assistant. Dtmlop t. Monroe, 7 Cranch, 242, 2 Cond. Rep. 484. Where it is intended to charge a postmaster for the negligence of his assistants, the plead- ings must be made up according to the case ; and his liability then will only result from his own neglect in not properly superintending the discharge of their duties in his office. Ibid. In order to make a postmaster liable for negligence, it must appear that the loss or injury sustained by the plaintiff, was the consequence of the negligence. Ibid. Parol evidence cannot be given that one set of written instructions from the postmaster- general superseded another set of written instructions ; it must be proved by comparing them together. Ibid. An entry in the post-bill is by no means conclusive evidence of the transmission of a letter, so as to charge the postmaster ; for it may still never have been put into the mail, or it may have been stolen on the passage. Ibid. The postmaster-general cannot sue in the federal courts under that part of the constitution which gives jurisdiction to those courts in consequence of the character of the party, nor is he authorized to sue by the judiciary act. He comes into the courts of the United States under the authority of an act of congress, the constitutionality of which rests upon the admission that his suit is a case arising under a law of the United States. Osbom et al. v. T%e Bank of the United States, 9 Wheat. Hep, 738, ^ Cond. Eep. 741. The circuit courts of the United States have jurisdiction under the constitution, the acts of April 10, 1810, c. 262, sec. 29, and of March 3, 1815, c. 782, sec. 4, of suits brought in the name of the postmaster-general of the United States, on bonds given to the postmaster-general by a deputy postmaster, conditioned to pay all moneys that shall come to his hands for the postages of whatever is by law chargeable with postage, to the * postmaster-general of p ,„« the United States for the time being, deducting only the commission and allowance L '^^"^ Vol,. VI.— 51 2i2 401 489 SUPREME COURT. [Jackson ». Chew.] made by law for his care, trouble, and charges in managing the said office. Postmaster- General V. Early et al, 12 Wheat. Rep. 130, 6 Cond. Rep. 480. The postmaster-general has authority to take such a bond, under the different acts establish- ing and regulating the post-ofiice department, and particularly under the twenty-ninth and forty- second sections of the act of April 10, 1810, c. 262. Jbid. The neglect of the postmaster-general to sue for balances due by postmasters, within the time prescribed by law, although he is thereby rendered personally chargeable with such balance, is not a discharge of such postmasters or their sureties, from liability on their official bonds. Locke V. Postmaster-General, 3 Mason, 446. Nor is an order from the post-office department, directing a postmaster to retain the balances due, until drawn for by the general post-office. Ibid. The provisions of the law enjoining upon the postmaster-general to require from his deputies regular periodical settlements and payments, are directory to him, but they form no condition in the contract with the postmasters or their sureties. Ibid. The act of congress, for regulating the post-office department, does not, in terms, discharge the obligors, in the official bond of a deputy postmaster, from the direct claim of the United States upon them, on the failure of the postmaster-general to commence a suit against the de- feulting postmaster, within the time prescribed by law. Their liability, therefore, continues. They remain the debtors of the United States. The responsibility of the postmaster-general is superadded to, not substituted for, that of the obligors. Dox et al. v. ITie Postmaster-General, 1 Peters, 333. Jackson, ex dem. St. John, v. Chew. 12 Wheaton's Reports, 153. E. being seised of certain lands in the state of New York, devised the same, by his last wiFi and testament, to his son Joseph, in fee, and other lands to his son Medcef, in fee, and added : " it is my will, and I do order and appoint, that if either of my said sons should de- part this life without lawful issue, his share or part sh.ill go to the survivor ; and in case of both their deaths without lawful issue, then I give all the property to my brother John E., and my sister Hannah J., and their heirs." Joseph, one of the sons, died without lawful issue, in 1812, leaving his brother Medcef surviving, who afterwards died withont issue : held, that Joseph took an estate in fee, defeasible in the event of his dying without issue in the lifetime of his brother ; that the limitation over was good as an executory devise ; and on the death of Joseph, vested in his surviving brother Medcef. This court adopts the local law of real property, as ascertained by the decisions of the state courts, whether those decisions are grounded on the construction of the statutes of the state, or form a part of the unwritten law of the stale. [See note at the end of the case.] */ the act of congress, and the principles of the law of France, which have been cited at the argument, attributing to them the full force which that argument supposes, to establish the validity of the instrument, do not change the forum which is entitled, by the local jurisprudence, to pro- nounce upon it as a testamentary paper, and to grant a probate. It is one thing to possess proofs, which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances'which ought to give it legal effect here ; and quite a dif- ferent thing, to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon. For this reason, the decree of the court below is to be aflSrmed, but without prejudice, so that the instrument may be submitted to the decision of the proper probate court. Will. Probate. See notes, ante, 189. Rankin and Schatzell, Plaintiffs in error, v. Scott, Defendant in error. 12 Whealon's Reports, 177. The lien of a judgment on tlie lands of the dehtor, created by statute, and limited to a certain period of time, is unaffected by the circumstance of the plaintiff not proceeding upon it J during that period) until a subsequent lien has been obtained and carried into execution. See note at the end of the case.] Universal principle that a prior lien is entitled to prior satisfaction out of the thing it binds, unless the lien be intrinsically defective, or is displaced by some act of the party holding it, Vfhich shall postpone him at law or in equity. Mere delay in proceeding to execution is not such an act. Distinction created by statute, as to executions against personal chattels, and reason on virhich it is founded. ^c„i., *ERROR to the district court of Missouri. J This was an action of ejectment, brought in the court below by the defendant in error, Scott, to recover the possession of a house and lot in the town of St. Louis. At the trial, a special verdict was found, stating,' that in the year 1816, John Little married Marie An- toinette Labadie, who was then seised in fee of the house and lot in question. She died without issue, leaving the husband seised in fee of a moiety of the premises. He soon afterwards died without issue, and intestate. In April, 1821, judgment was rendered in the circuit court 414 JANUARY TERM, 1827. 505 [Rankin and Schatzell o. Scott.] of the county where the premises lay, against the administrator of Little, in favour of Schatzell and another, for two thousand seven hun- dred and forty-seven dollars and nineteen cents. In March following, another judgment was rendered against the same, in favour of B. Pratte, for one thousand two hundred and forty-one dollars. Execution was immediately issued upon the latter judgment, and the premises in ques- tion sold under it to Scott, the plaintiff in ejectment ; and soon after- wards, another execution issued upon the first judgment, and the same premises were sold to Schatzell, one of the defendants below, and con- veyed to him by the sheriffs deed. Rankin, who was tenant to Little in his lifetime, remained in possession of the premises after his death, and attorned to Schatzell. The question raised upon these facts was, whether the sale by the sheriff, under the second judgment and first execution, devested the lien of the first judgment ; the, court below determined it in the affirmative ; and the cause was brought, by writ of error, before this court. Mr. Benton, for the plaintiffs in error, cited : Geyer's Dig. Laws of Missouri, 264, 267. 1 Johns. Cas. 224. 13 Johns. Rep. 463, 533. I Ball. 481, 486. 4 Ball 450. Mr. Talbot, contra, cited: 1 Term Rep. 729. 1 Lord Raym. 251. 1 Burr. 20. 8 Co. Rep. 171. Cro. Eliz. 181. 1 Salk. 320. Mr. Chief Justice Marshall delivered the opinion of the court ; and, after stating the case, proceeded as follows : The act of the then territorial government of Missouri, on which this question depends, is in these words: "judgments obtained in the general court shall be a lien on the lands and tenements of the person or persons against whom the same has been entered, situate in any part of this territory; and judgments obtained in a court of common pleas of any district, shall be a lien on the lands and tenements of the person against whom the same has been entered, situate in such district." The act contains a proviso, "that no judgment hereafter entered in any court of record within this territory, shall continue a lien on the lands *and tenements against whom the same has been entered, during r#cne a longer term than five years from the first return day of the L term of which such judgment may be entered, unless the same shall have been revived by scire facias," &c. Since the territory of Missouri was erected into a state, the general court has received the appellation of the superior court, and the court of common pleas for the district^has been denominated the circuit court for the county. The execution on the first judgment was issued within a short time after it was rendered, and while the lien it created was in full force, unless it was removed by the execution and sale under the second judgment. There is no expression in the law of Missouri which can suggest a doubt on this subject. By that law, judgments are to be a lien on all" the lands of the debtor. This lien commences with the judgment, and continues for five years. The principle is believed to be universal, that a prior lien gives a prior claim, which is entitled to prior satisfaction, out of the subject it binds, unless the lien be intrinsically defective, or be displaced by some act of the party holding it, which shall postpone him in a court of law or equity to a subsequent claimant. The single 415 506 SUPREME COURT. [The United States v. Tillotson.] circumstance of not proceeding on it until a subsequent lien has been obtained and carried into execution, has never been considered as such an act. Take the common case of mortgages. It has never been supposed that a subsequent mortgage could, by obtaining and executing a decree for the sale of the mortgaged property, obtain precedence over a prior mortgage in which all the requisites of the law had been ob- served. If such a decree should be made without preserving the rights of the prior mortgagee, the property would remain subject to those rights in the hands of the purchaser. So, in cases of judgment, where an elegit may be sued out against the lands of the debtor. The implied lien created by the first judgment, retains the preference over the lien created by a second judgment, so long as an elegit can issue on the first. A statutory lien is as binding as a mortgage, and has the same capacity to hold the land so long as the statute preserves it in force. The cases cited of executions against personal property, do not, we think, apply. In those cases the lien is not created by the judgment, or by any matter of record. The purchaser of the goods cannot sup- pose that the officer has committed any impropriety in the performance of his duty, and this circumstance has induced parliament to secure him. It is stated by Ashhurst, Justice, in 1 Term Rep. 731, that this was the sole object of that part of the statute of frauds which relates to this subject. In the case at the bar, the j udgment is notice to the purchaser *'i071 *^^ *'^® prior lien, and there is no act of the legislature to protect J the purchaser from that lien. We think, then, that the deed made by the sheriff to the purchaser, under the first judgment, conveyed the legal title to the premises; and that the judgment on the special verdict ought to have been in favour of the plaintiff. Judgment reversed. Cases on lien on real estate. See notes, 4 Cond. Rep. 457. The United States v. Tillotson and another. IS'TOca/on's Reports, 180. WHERE the burden of proof of certain specific defences set up by the defendant is on him, and the evidence presents contested facts ; an absolute direction from the court, that the matters produced and read in evidence on the part of the defendant were sufficient in law to main- tain the issue on his part, and that the jury ought to render their verdict in favour of the defendant, is erroneous; and a judgment rendered upon a verdict purporting to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions taken at a trial before the jury upon the matters in issue, no such trial ever having taken place, and the case having assumed that shape by the agreement of the parties, in order to take the opinion of the court upon certain questions of law. 416 JANUARY TERM, 1827. 508 *Thornton, PlainlifF in error, v. Wynn, Defendant in error. [*508 13 Wheaton's Reports, 183. Au unconditional promise, by the endorser of a bill or note, to pay it, or the acknowledgment of his liability, after knowledge of his discharge from his responsibility by the laches of the holder, amounted to an implied waiver of due notice of a demand from the drawee, acceptor or maker. So an acknowledgment of the drawer's or endorser's liability Has the same effect. Knowledge of the fact of the laches of the holder is essential to charge the endorser upon his promise or acknowledgment. Upon a sale with a warranty of soundness, or where, by the special terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent to an offer accepted by the vendor, and the contract being thereby rescinded, it is a defence to an action for the purchase-money, brought by the vendor, and will entitle the vendee to recover it back if it has been paid. So, if the sale is absolute, and the vendor afterwards consent unconditionally to take back the article, the consequences are the same. But if the sale be absolute, and there be no subsequent consent to take back the article, the contract remains open, and the vendee must resort to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it within a reasonable time. MR. C. C. LEE, for the plaintiff in error; Mr. Worthington, for the defendant in error. Cases cited: 2 H. Bl. 609. 1 Moore's Rep. C. P. 535. 3 Camp. 57. n East's Rep. 114. 4 Dall. 109. -4 Taunt. 93. 1 Esp. 261. 6 East's Rep. 110. 1 H. Bl. 17. 1 Tern Rep. 405. 2 Term Rep. 703, 713. 1 Esp. 302. 12 East's Rep. 171. 4 Cranch, 141, 2 Cond. Rep. 58. 2 Johns. Rep. 1. 7 Mass. Rep. 449. 5 Mass. Rep. 170. 1 1 Johns. Rep. 180. Peake's N. P. Cos. 203. 1 Taunt. 12. 15 East's Rep. 275. Cowp. 888. Dougl. 24. 1 Term Rep. 133. 7 East's Rep. 274. 2 Taunt. 2. 14 Johns. Rep. 416. 2 East's Rep. 320. Mr. Justice Washington delivered the opinion of the court. This was an action brought by the defendant in error against the plaintiff in error, in the circuit court for the district of Columbia and county of Washington, upon a promissory note given by one Miller to Thornton, and by him endorsed to Wynn. The declaration contains a count upon the note, and also the common counts for money laid out and expended, and for money had and received. At the trial of the cause upon the general issue, the defendant below took two exceptions to the opinion of the court, which are to the follow- ing effect. The first states, that the plaintiff gave in evidence the note ♦and endorsement mentioned in the declaration, and in order to r^arft dispense with the proof of the ordinary steps of diligence in pre- L senting and demanding the note of the drawer, and giving notice to the endorser, the plaintiff offered evidence to prove, that, a few weeks be- fore the institution of this suit, the note in question was presented to the defendant, who, being informed that Mill6r, the drawer, had not paid the note, said, " he knew Miller had not, and that Miller was not to pay it ; that it was the concern of the defendant alone, and Miller Vol. VI.— 53 417 509 SUPREME COURT. [Thornton v. Wynn.] had nothing to do with it ; that the note had been given for part of the purchase-money of a certain race-horse called Ratler, and that the de- fendant offered to take up the said note if the plaintiff's agent would give time, and receive other notes mentioned in payment ;" to the ad- mission and competency of which evidence the defendant objected ; but the court overruled the objection, and admitted the evidence as com- petent to support this action, without any further proof of demand upon the drawer or notice to the endorser. That the said evidence being so admitted by the court, the defendant offered evidence to prove that the said note was given for part of the purchase-money of the said race-horse, then celebrated for his perform- ances on the turf, sold by the plaintiff to the defendant, and the said Miller, the drawer of the note, for three thousand dollars, of which two thousand dollars had been paid; that the plaintiff, at the time of so sell- ing this horse, warranted him sound, and declared hira capable of beat- ing any horse in the United States, and recommended 1;he purchasers to match him against a celebrated race-horse in New York called Eclipse ; that he also gave a representation of his pedigree, which he described as unexceptionable, and promised to procure its pedigree and send it to the defendant. And the defendant then offered (evidence to prove that the said horse, at the time of the said sale, was utterly un- sound, and broken down, and had been broken down whilst in the plaintiff's possession, and was reputed and proven by persons in the neighbourhood of the plaintiff, who afterwards communicated the same to the purchaser ; and was wholly unfit for, and incapable of, the action and fatigue necessary to a race-horse ; and that the plaintiff had wholly failed to procure and furnish the pedigree of the horse as he had agreed, and that a pedigree was an essential term in the purchase of the horse, or ordinarily is so in the purchase of such horses, without which this horse was worth nothing ; and that the said Miller, as soon as it had been ascertained by repeated trials that the horse was incurably un- sound, offered to return him to the plaintiff, who refused to take him back, although the former offered to lose what he had already paid for the horse, which offer was made after the note fell due. Whereupon ♦'ilOl *^^^ court instructed the jury, at the prayer of the plaintiff, that J if they should be of opinion, from the said evidence, that the said horse v?as, at the time of the said sale, utterly unsound and broken down, and Had been broken down whilst in the plaintiff's possession, and was wholly unfit for„and incapable of, the action and fatigue ne- cessary to a race^horse, bat that the said facts were not known to the plaintiff at the tirpe of the said sale, the said facts are not a sufficient defence in this action to prevent the plaintiff from recovering. Upon these instructions of the court, the jury found a verdict for the plaintiff, and the cause now comes before this court upon a writ of error. This bill of exceptions presents two questions for the decision of this court. The first is, whether the evidence offered by the plaintiff, and admitted by the court, dispensed with the necessity of proving a de- mand of payment of the maker of the note, and due notice to Thorn- ton of non-payment ; and, secondly, whether the court below erred or not, in stating to the jury that the alleged breach of the warranty of the horse, if proved tiQ, thevc aa^tisfaction, wa,s not a sufficient defence in 418 JANUARY TERM, 1827. 510 [Thornton v. Wynn.] ihis action to prevent the plaintiff from recovering, unless the facts stated in the bill of exceptions were known to the plaintiff at the time of the sale. In the argument, of the first question, the counsel on both sicles con- sidered the evidence offered by the plaintiff as presenting a double as- pect. 1st. As authorizing a conclusion, in point of fact, that the note of hand on which the suit is brought, was made and passed to Thornton without consideration,: and merely for his accommodation ; and, 2d. As amounting to a promise to pay the note, or at least to an admission by Thornton of his liability to pay it, and of the right of the plaintiff to resort to him, whether it was made solely for his accommodation, or was given for value in the ordinary c'ourse of trade. As to the first, the counsel treated the note throughout as an accom- modation note, and submitted to the decision of this court the question, whether the endorser of such a note was entitled to call for proof of a demand of payment of the maker, and notice to himself? Whether this question was ever raised in the court below, or in what manner it was there treated, does not appear from the bill of exceptions. It is possible that that court may have intended nothing more by their direction to the jury, than to sanction the admissibility of the evidence, and its sufficiency to authorize a verdict for the plaintiff, without other proof of demand and notice, provided the jury should be of opinion thait it warranted the conclusion that the note was given without considera- tion. But such is not the langiiage of the court as stated in the bill of *exceptions. The jury were informed that the evidence was r^cii competent to support tiie action without such further proof of ■■ demand and notice, without leaving the inference of fact that the note" was given without consideration to be drawn by the jury. Had the court distinctly stated to the jury that this was such a note, and, there- fore, that further proof of demand and notice was unnecessary, the incorrectness of the direction could have been doubted by no person, since the court would, in that case, have inferred a fact from the evi- dence, which it was competent to the jury alone to do. And yet it seems difficult to distinguish the supposed case from the one really pre- sented by the bill of exceptions, upon the hypothesis that the court below decided any thing as to the particular character of this note, since it is very obvious, that no question of fact was submitted to the consideration of the jury. It is, therefore, due from this court to the one whose decision we are revising, to conclude, that that decision did not proceed upon the assumption that this was a note drawn for the accommodation of the endorser. It remains to be considered, whether the direction was correct upon I the other aspect of the evidence. It is now well settled as a principle of the law merchant, that an unconditional promise by the drawer or endorser of a bill, to pay it, after full knowledge of iill the circumstances necessary to apprize him of his discharge from his responsibility by the laches of the holder, amounts to an implied waiver of due notice of a demand of the 4rawer or acceptor, and dispenses with the necessity of proving it. Such are the cases of Borrodaile v. Lowe, 4 Taunt. 93. Donaldson v. Mears, 4Dall. 109, and others which need not be cited. So if, with the knowledge of these circumstances, he answer, that the bill " must be 419 511 SUPREME COURT [Thornton v. Wynn.] paid," " that when he comes to town he would set the matter right," " that his affairs were then deranged, but that he would be glad to pay it as soon as his accounts with his agents was settled," or " that he would see it paid," or if he pay a part of the bill ; in all these cases it has been decided that proof of regular notice is dispensed with. 2 Term iJep. 713. Bull. JV. P. 276. 2 Campb. 188. 6 East, 16. 2Stra. 1246. The principle upon which these decisions proceed is explained in many of the above cases, and particularly in that of Rogers v. Stephens, 2 Term Rep. 713. It is this, that these declarations and acts amount to an admission of the party that the holder has a right to resort to him on the bill, and that he had received no damage for want of notice. See also Stark. Evid. 272. The same principle applies with equal force to promissory notes, which, after endorsement, partake of the character of bills of exchange, the endorser being likened to the drawer, and the maker to the acceptor *5121 *''^ ^ ^^^^' '^^^ ^^^^ '^^ Leffingwell and Pearpoint v. White, •^ Johns. Cas. 99, is that of a promissory note, where the endorser, before it became due, stated that the maker had absconded, and that, being secured, he would give a new note, and requested time. The court say, that the defendant had admitted his responsibility, treated the note as his own, and negotiated for further time for payment, by which conduct he had waived the necessity of demand of the maker, and notice to himself. Taylor v. Jones, 2 Camph^ 105, Vaughan v. Fuller, 2 Slra. 1246, and Aman v. Bailey, Bull. JV. P. 276, were all cases of actions on promissory notes against the endorser. In this case, the defendant below, upon being informed that Miller, the maker of the note, had not paid it, observed, that he knew he had not, and that hp was not to pay it ; that it was the concern of the defendant alone, and that Miller had nothing to do with it, it having been given for part of the purchase-money of a horse. These declarations amounted to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. It does not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury, to whom the conclu- sion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprized of the laches of the holder in not making a regular demand of payment of the note, by which he was discharged from his responsibility to pay it. The knowledge of this fact formed an indispensable part of the plaintiff's case, since with- out it it cannot fairly be inferred that the defendant intended to admit the right of the plaintiff to resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point of law. For any thing that appeared to the court below from the evidence stated in the bill of exceptions, the admissions of the defendant may have been made upon the presumption that the holder had done all that the law required of him in order to charge the endorser. That due notice, was not given to the defendant he could not fail to know ; but that a regular demand of the maker of the note could not be inferred by the court from the admissions of the defendant. For the reasons above stated, the judgment of the court below must be reversed, and the cause remanded for a new trial. 420 JANUARY TERM, 1827. 512 [Thornton ■«. Wynn.] But since the second question before mentioned has been distinctly brought to the notice of this court, has been fully argued, and must again be decided by the court below, it becomes necessary that this court should pass an opinion upon it. That question is, whether the al- leged breach of the warranty of the horse, the price of which formed part of the consideration of the note, if proved to the satisfaction of the jury, *was a sufficient defence in this action to prevent the plaintiff r^cio from recovering, unless the facts stated in the bill of exceptions L were known to the plaintiff below at the time of the sale ? The question is not whether the purchaser of a horse which is war- ranted sound has a remedy over against the vendor upon the warranty, in case it be broken; but whether, in an action against him for the purchase-money, he can be permitted to defend himself by proving a breach of the warranty. The cases upon this subject are principally those where the vendee, having executed the contract on his part, by paying the purchase- money, brought an action of indebitatus assumpsit against the vendor as for money had and received to his use. But it is perfectly clear that the reasoning of the court in those cases applies with equal force to a case where the breach of the warranty is set up by the vendee as a defence against an action against him to recover the purchase- money. The first case we meet with on this subject is that of Power v. Wells, of which a very imperfect report is to be seen in a short note in Dougl. 24, and in Coiop. Rep. 818. There the plaintiff gave a horse and twenty guineas to the defendant for another horse, which he war- ranted to be sound, but which proved otherwise. The plaintiff offered to return the horse, which was refused ; and the plaintiff brought two actions, one for money had and received, to recover back the twenty guineas which he had paid, and an action of trover for the horse, pos- session of which the plaintiff had delivered to the defendant. The court decided that neither action could be maintained ; not the second, because the property had been changed. This case was referred to by the judge who had decided it at nisi prius, in the case of Weston v. Downes, Dougl. 23, which soon after came before the court of king's bench. That was an action for money had and received, and the case vtras, that the plaintiff had paid a certain sum to the defendant for a pair of horses, which the defendant agreed at the time to take back, if they were disapproved of and returned within a month. They were returned accordingly within the stipulated period, and another pair was sent in their stead, without any new agreement. These were likewise returned, and accepted by the vendor, and a third pair were sent, which being likewise offered to be returned, the vendor refused to take them back. Lord Mansfield was against the action, because, the contract being a special one, the defendant ought to have notice by the decla- ration that he was sued upon it. Ashhurst, J., was of the same opi- nion; but added, that if the plaintiff had demanded his money on the return of the first pair of horses, this action would have lain, but that the contract was continued; from which expression nothing more is *understood to have been meant than that the contract remained r^^ci^ open. The ground upon which Buller, X, thought that the ac- '■ tion could not be maintained was, that, by refusing to take back the 2L 421 514 SUPREME COURT. [Thornton v. Wynn.] horses, the defendant had not precluded himself from entering into the nature of the contract, and that, whenever that is open, it must be stated specially. The meaning of these latter expressions is distinctly stated by the court, and particularly by this judge, in the case of Towers v. Barrett, 1 Term Rep. 123, which followed next in order of time ; that was also an action for money had and received. The money was paid for a horse and chaise, to be returned in case the plaintiff's wife should not approve of them. They were accordingly sent back to the defendant in three days after the sale, and left on his premises against his consent to receive them. Lord Mansfield, Ch. J., and Willis, J., distinguish this case from that of Weston v. Downes upon the ground that that was an absolute, and this a conditional agreement, which was at an end by the return of the horse and chaise, and was no longer open. Both the judges treat the case as if the vendor had taken back the property, although, in fact, he had not consented to do so. Ashhurst, J., was of opinion that this case would have resembled that of Weston v. Downes, if, in that, the plain- tiff had returned the horses. It is very clear, from what was said by the same judge in that case, that his meaning in this was, if the plain- tiff had returned the first pair of horses and then demanded his money; for he adds that in that case there was an end of the first contract by the plaintiff's taking other pairs, and this constituted a new contract, not made on the terms of the first. But in this case the contract was conditional, and, when the horse and chaise were returned, the contract was at an end, and the defendant held the money against conscience. Buller, J , is still more explicit. He says that the defendant, by the con- tract, had put it in the power of the plaintiff to terminate it, by return- ing the horse and chaise, and that the plaintiff had no option to refuse to take them back; and that, being bound to receive them, the case was the same as if he had actually accepted them. He adds that the distinction between those cases where the contract is open, and where it is not, is, that if it be rescinded, either by the original terms of the contract, as in this case, where no act remains to be done by the de- fendant, or by a subsequent assent by him, the plaintiff may recover back his whole money, and then this action will lie. But if it be open, the plaintiff's demand is only for damages arising out of the contract. The court proceeded upon this distinction in deciding the case of Payne v. Whale, 7 East's Rep. 274, which followed the one just no- ticed. The action was to recover back money paid to the defendant ,(.,p-, *for a horse sold by him to the plaintiff, which he warranted J sound. The plaintiff offered to return the horse upon an alle- gation of his unsoundness, which the defendant denied, and refused to take him back, but agreed that, if he was in fact unsound, he would take him back, and return the purchase-money. The unsoundness was proved at the trial; but the court was of opinion, that the action could not be supported, and distinguished this case from the preceding one by observing, that in that the plaintiff had an option, by the original contract, to rescind it on a certain event ; but, here, it was no part of the original contract that the horse was to be taken back ; and that the subsequent promise amounted to no more than that he would take him back if the warranty were shown to be broken, which still left the 422 JANUARY TERM, 1827. 515 [Mallow 21. Hinde.] question of warranty open for discussion, and then the form of the action ought to give the defendant notice of it by being brought upon the warranty. ^ The case of Lewia v. Congrave, 2 Taunt. 2, was precisely lilie the present, in which the same distinction, and the same principles, were recognised by the judge who tried the cause at nisi prius. It was au action on a bill drawn for the price of a horse, which, on the sale of him, was warranted sound, but turned out not to be so. The defendant offered to return the horse, which was refused, and the defendant left him in the plaintifPs stable without his knowledge. The judge decided, that as the plaintiff had refused to take back the horse, the contract of sale was not rescinded, and consequently, that the defendant must pay the bill, and take his remedy by action for the deceit., But upon a rule to show cause why a new trial should not be granted, the court said, that it was clear the plaintiff knew of the unsoundness of the horse, which was clearly a fraud, and that no man can recover the price of an article sold under a fraud. See also the cases of Fortune v. Ling- ham, 2 Campb. 416, and Solomon v. Turner, 1 Stark. 51. The result of the above cases is this : if, upon a sale with a warranty, oy if, by the spdcial terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent to an offer ac- cepted by the vendor, and, in that case, the contract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchase-money, or to enable the vendee to maintain an action for money had and received in case the purchase-money has been paid. The consequences are the same where the sale is absolute, and the vendor afterwards consents, unconditionally, to take back the property; because, in both, the contract is rescinded by the a,greement of the parties, and the vendee is well entitled to retain the purchase-money in the one case, or to recover it back in the other. But if the sale be ab- solute, and there be no subsequent agreement or consent of the vendor to take *back the article, the contract remains open, arid the r^cie vendee is put to his action upon the warranty, unless it be proved •- that the vendor knew of the unsoundness of the article, and the vendee tendered. a return of it within a reasonable time. We are, therefore, of opinion, that the direction of the court in this case, upon the second exception, was entirely correct. The judgment is to be reversed, and the cause remanded to the court below for a new trial. / Mallow and others v. Hinde. 12 Wheaton's Reports, 193. Where an equity cause may be finally decided as between the parties litigant, without bringing others before the court, who would, generally speaking, be necessary parties, suet parties may be dispensed with in the circuit court, if its proofs cannot reach them, or if they are citizens of another state. [See note at the end of the case.] But if the rights of those not hefore the court are inseparably connected with the claim of the 423 516 SUPREME COURT. [Mallow V. Hinde.] parties litigant, so that a final decision cannot be made between them without afiecting the rights of the absent parties, the peculiar constitution of the circuit court forms no ground for dispensing with such parties. But the court may, in its discretion, where the purposes of justice require it, retain jurisdiction of the cause on an injunction bill as between the parties regularly before it, until the plain- , tiffs have had an opportunity of litigating their controversy with the other parties in a com- petent tribunal, and if it finally appear by the judgment of such tribunal, that the plaintiffs are equitably entitled to the interest claimed by the other parties, may proceed to a final decree upon the merits. MR. BOND and Mr. Brush, for the appellants ; Mr. Doddridge and Mr. Scott, for the respondents, Mr. Justice Thimble delivered the opinion of the court. This is an appeal from the decree of the circuit court for the district of Ohio, dismissing generally, with costs, the bill of the appellants, who were plaintiffs in that court. The suit was a contest for land in the district, set apart on the north- west side of the Ohio, for the satisfaction of the bounty lands due to the officers and soldiers of the Virginia line, or continental establish- ment, in the revolutionary war. *5171 *The plaintiffs set up claim to the land by virtue and under a J survey. No. 537, in the name of John Campbell. It appears that John Campbell, before his death, made his last will and testament, whereby he devised his land warrants, entries and surveys, in the military district, to colonel Richard Taylor and others, his executors, in trust for the children of the testator's sister, Sarah Beard ; and that Taylor alone qiialified as executor, and took upon himself the trust. Taylor never conveyed or assigned the warrants, entries, or surveys to Mrs. Beard's children, but permitted them, as the bill charges, to take the management of them into their own hands. Elias Langham made sundry executory contracts with Mrs. Beard's children, after they arrived at full age, which contracts are se.t out in the bill, whereby, as the complainants allege, Langham became equita- bly entitled to survey No. 537 ; and afterwards sold, and made deeds of conveyance for the land to the complainants ; who, in consequence of their purchases from Langham, took possession of, and improved the land. Thomas S. Hinde, having purchased and procured an assignment of a military warrant from colonel Richard Taylor, and belonging to him in his own right, made an entry thereof in Hinde's own name in the principal surveyor's office ; and having caused a survey to be made thereupon, covering survey number 537, in the name of Campbell, Hinde obtained a patent for the land from the government. Being thus clothed with the legal title, Hinde instituted actions of ejectment in the circuit court against the appellants, and obtained judgments of eviction against them. They filed their bill praying for an injunction against the judgments at law ; and also praying that Hinde should be decreed to release and convey to them his legal title, and for generar relief. The bill charges, that colonel Richard Taylor, with full notice that the appellants were, in virtue of Langham's contract with the cestuis que trust, and Langham's sale to them, equitably entitled to, and in 424 JANUARY TERM, 1827. 517 [Mallow 0. Hinde.j possession of, survey number 537, fraudulently combined with Hinde and others, and improperly and without authority, withdrew the entry on which survey number 537 had been made, and re-entered and caused it to be surveyed elsewhere ; and that Hinde, availing himself of such improper and unauthorized withdrawal, had entered, surveyed and patented the land in his own name, he also having notice of all the circumstances attending the claim of the appellants ; and that Taylor and the Beards refuse to perfect the survey by obtaining a patent, and refuse to convey or transfer it to the appellants. The bill also alleges, that Langham had become equitably and *legally entitled to the survey number 537, as a purchaser r^cio thereof for taxes due thereon to the state of Ohio. i- Hinde filed his answer, in which he denies the charges of fraud and collusion ; insists the land had become vacant by the withdrawing of the entry in the name of Campbell, and by surveying it elsewhere; and that he had legally appropriated it by his entry, survey, and grant ; he neither admits nor denies the execution of the contracts alleged between Langham and the Beards, and puts the complainants upon proof; and he further insists that such contracts, if made, conferred upon Langham no equitable title : first, because the Beards had no power to sell, with- out the concurrence of Taylor, the trustee; and, secondly, because Langham had obtained the contracts by fraud, and had not paid the consideration stipulated. Neither Taylor, the trustee, nor the cestuis que trust, with whom the complainants allege Langham contrificted for the land, are made de- fendants, they being out of the limits of the jurisdiction of the court. No attempt has been made in the argument to support the validity of the tax sale, and it may be laid out of the case. For the appellees it is insisted, that the proper parties are not before the court, so as to enable the court to decree upon the merits of the conflicting claims. And we are all of that opinion. It is plain, that the appellants cannot set up the survey number 537, against the appellees' title, without first showing themselves entitled to that survey. They claim that survey, not by any assignment, or other instrument, investing them with a legal right to it, but by executory agreements, the validity and obligation of which the parties to them have a right to contest. We cannot try their validity, and decide upon their efficacy, by affirming they confer upon the appellants an equitable right, without manifest prejudice to the rights of those not before the court. The complainants can derive no claim in equity to the survey, under, or through Langham's executory contracts with the Beards, unless these contracts be such as ought to be decreed against them specifically by a court of equity. How can a court of equity decide that these con- tracts ought to be specifically decreed, without hearing the parties to them ? Such a proceeding would be contrary to all the rules which govern courts of equity, and against the principles of natural justice. Taylor, too, is the legal proprietor of the warrant, by virtue of which the entry and survey number 537 was made, and in general the right of removal is incidental to the right of property. But it is alleged he has parted with that incidental right, although the general legal title of Vol. VL— 54 2l2 425 S19 SUPREME COURT. [Mallaw V. Hinde.] *51Q1 *ownership remains in him; or that he has exercised this inci- -' dental right frandutently and improperly, to the prejudice of the appellants. Can any court justly strip him of this incidental right, or convict him of fraud unheard 1 Besides, if the court should, by its decree, compel Hinde to release his legal title to the complainants, upon the grounds, that the entry and survey number 537 are superior to his title, it would be giving to the complainants that which belongs to Taylor as trustee, and to his cestuis que trust, unless by their acts and agreements they have parted with their right to the survey. If the courts of the United States were courts of general jurisdiction, it could not be doubted, that Taylor, William and Joseph Beard, and Mr. M'Gowan and wife, would be necessary and indispensable parties, without whom uo decree upon the merits could be made. But it is contended, that the rule which prevails in courts of equity generally, that all the par- ties in interest shall be brought before the court, that the matter in controversy may be finally settled, ought not to be adopted by the courts of the United States, because, feom the peculiar structure of their limited jurisdiction over persons;, the application of the rule in its full extent would often oust the court of its acknowledged jurisdiction over the persons and subject before it. It is true, this equitable rule is framed by the court of equity itself, and is subject to its sound discretion. It is not, like the description of parties, an inflexible rule, the failure to observe which turns the party out of court, merely because it has no jurisdiction over his cause; but being introduced for the purposes of justice, is susceptible of con- siderable modifications for the promotion of these purposes. Accord- ingly, this court, in the case of Elnaendorf v. Taylor, 10 Wheat. 167, ante, 44, has said, " that the rule which requires that all persons con- cerned in interest, however remotely, should be made parties to the suit, though applicable to most cases in the courts of the United States, is jiot applicable to all. In the exercise of its discretion, the court will require the plaintiff to do all in his power to bring every person con- cerned in interest before the court. But if the case may be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be the resident of some other state, ought not to prevent a decree upon its merits." This doctrine was applied to the case where a small interest was out- standing in one not before the court, as tenant in common. In that case, the right of the party before the court did not depend upon the right of the party not before the court ; each of their rights stood upon its own independent basis ; and the ground upon which it *59m *^^^ necessary, according to the general principle, to have both J before the court, was to avoid multiplicity of suits, and to have the whole matter settled at once. In this case, the complainants have no rights separable from, and in- dependent of, the rights of persons not made parties. The rights of those not before the court lie at the very foundation of the claim of right by the plaintiffs, and a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties. 426 JANUARY TERM, 1827. 520 [Connor v. Featherstone.] We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdiction. We put it on the ground that no court can adjudicate directly upon a person's right, without the party being either actually or constructively before the court. We have no doubt the circuit court had jurisdiction between the complainants and the defendant, Hinde, so far as to entertain the bill, and grant an injunction against the judgments at law, until the matter could be heard in equity. And if it had been shown to the circuit court, that from the incapa- city of that court to bring all the necessary parties before it, that court could not decide finally the rights in contest, the court, in the exercise of a sound discretion, might have retained the cause, and the injunc- tion, on the application of the complainants, until they had reasonable time to litigate the matters of controversy between them, and Taylor and the Beards, in the courts of the state, or such other courts as had jurisdiction over them ; and if then it was made to appear by the judg- ment of a competent tribunal, that the complainants were equitably interested with the rights of Taylor, the trustee, and the cestuis que trust in the survey number 537, the circuit court could have proceeded to decree upon the merits of the conflicting surveys. Such a proceeding would seem to be justified by the urgent necessity of the case, in order to prevent a failure of justice ; and the cause would have remained under the control of the circuit- court, so as to have enabled it to prevent unreasonable delay, by the negligence or design of the parties, in litigating their rights before some competent tribunal. The cause having been brought to a hearing before the circuit court in its present imperfect state of preparation, that court could not do otherwise than dismiss the bill ; but as no final decision of the rights of parties could properly be made, the dismission, instead of being general, ought to have been without prejudice. So much of the decree as dis- misses the bill generally must be reversed, and the decree, in all things *e!se, affirmed ; and the cause is to be remanded to the circuit r^fcgi court, with directions' to dismiss the bill without prejudice. L*''^* W/io are necessairy parties in suits in equity cases decided in the courts of the United States. See notes, 5 Cond. Sep« 181. Connor and others, Appellants, v. Featherstone and others, Respondents. 13 Wheatim's Reports, 199, A QUESTION of fact upon a bill filed to set aside the sale and assignment of a land warrant, upon the ground that it was obtained by fraudulent misrepresentation, and taking undue advantage of the party's imbecility of body and mind. Evidence deemed insufficient, and bill dismissed. 427 521 SUPREME COURT. Edwards's Lessee v. Darby. 13 Wheaton's Reports, M6. UNDER the act of North Carolina of 1782, for the relief of the officers and soldiers in the continental line, &c., the commissioners having determined that the French lick was within the reservations of the statute, as public property, and having surveyed the said reservation in 1784, the same was protected from individual survey and location, although it exceeded the quantity of six hundred and forty acres. *The French lick reservation has not been since subjected to appropriation, by entry and survey, as vacant land, by any *522] subsequent statute of North Carolina or Tennessee, Devereaux v. Marr. 12 Wheaton's Reports, m. This court cannot take jurisdiction of a question, on which the opinions of the judges of the circuit court are opposed, where the division of opinions arises upon some proceeding subse- quent to the decision of the cause in that court. IN this case, the judges of the circuit court of West Tennessee, after a judgment had been rendered in that court, divided in opinion upon the question as to the amount of the security bond, to be given by the party applying for a writ of error, whether the amount of the bond ought to be sufficient to cover the whole debt, or only for the costs and increased damages on the party failing to prosecute his writ of error with effect. Whereupon the division of opinions was certified to this court under the sixth section of the judiciary act of the 29th of April, 1802, ch. 291. The court was of opinion, that it had no jurisdiction of the question on which the opinions of the judges of the circuit court were opposed, the division of opinions having arisen after the decision of the cause in that c6uft. Certificate accordingly. 428 JANUARY TERM, 1827. 523 *Ogden, Plaintiff in error, v. Saunders, Defendant in error. [*523 12 Wheuton's Reports, 213. A bankrupt or insolvent law of any state, which discharges both the person of the debtor, and his future acquisitions of property, is not " a law impairing the obligation of contracts," so far as respects debts contracted subsequent to the passage of such law, in those cases where the contract was made between citizens of the state under whose laws the discharge was obtained, and in whose courts the discharge may be pleaded. The power given to the United Slates by the constitution, " to establish uniform laws on the subject of bankruptcies throughout the United States," is not exclusive of the right of the states to legislate on the same subject ; except when the power is actually in exercise by congress, and the laws of the state are in conflict with the law of the United States. But when, in the exercise of that power, the states pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other states, there arise a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states, and with the constitution of the United States. [See note at the end of the ca$e,] IN the district court of the United States for the district of Louisiana, Siunders, a citizen of Kentucky, instituted an action of assumpsit against Ogden, a citizen of Louisiana, and declared upon certain bills of exchange, drawn by Jordan at Lexington, in the state of Kentucky, upon Ogden in the city of New York, he being then a citizen and resi- dent in the city and state of New York. The bills were accepted by Ogden at the city of New York, and were protested for non-payment. The defendant, Ogden, afterwards was discharged as an insolvent debtor, under the act of the legislature of New York, passed April 3, 180L for the relief of insolvent debtors, commonly called " the three- fourths act." The defendant, in the district court, pleaded his discharge under the insolvent lawof New York; and thestatuteof limitations of New York, (non assumpsit infra sex annos.) To the plea of the statute of limitations of New York, the plaintiff below, Saunders, replied ; that previous to the running of the statute, to wit, in April, 1810, the defendant, Ogden, removed from the state of New York to the state of Louisiana, where he continued to reside until the commencement of this suit. The jury, in the district court, found the facts of the drawing and acceptance of the bills, the discharge under the insolvent law of New *York, and that the defendant removed to the state of Louisiana r^pco^ at the time slated in the plaintiff's replication, and submitted to L the court, " if the law be for the plaintiff, then they find for the plain- tiff the amount of the several acceptances, with the interest and costs ; but if the law on the said facts be for the defendant, then the jury find for the defendant, with costs." A judgment was rendered by the district court upon this verdict, in favour of the plaintiff; and the defendant prosecuted this writ of error. Before this court, it was, in addition to the matters set forth in the pleadings, assigned as error, " that the judgment of the court is for a greater sum than is found by the jury ; the whole amount of the bills 42& 524 SUPREME COURT. [Ogden II. Saunders.] set forth in the petition being two thousand one hundred and eisjhiy- three dollars, amounting, with interest from the time of the judicial demand, to two thousand six hundred and fifty-two dollars and thirty- ' four cents. Whereas the judgment is for the sum of four thousand and seventeen dollars, sixty-four cents, damages, «&c." The question under the plea of the discharge of the defendant in tlie district court under the insolvent law of New York, on the ground that the law was invalid as being repugnant to the constitutiqn of the United States, was argued at February term, 1824, by Mr. Clay, Mr. D. B. Ogden, and Mr. Haines, for the plaintiff in error; and by Mr. Webster and Mr. Wfaeaton, for the defendant, and held under advisement. Afterwards, at this term, it was argued, in connection with other cases depending on the question of the validity, of state bankrupt and state insolvent laws, by Mr. Webster and Mr. Wheaton, against the constitu- tionality of such laws ; and by Mr. Wirt, the attorney-general, Mr. Livingston, Mr. D. B. Ogden, Mr. Jones, and Mr. Sampson, contra. Mr. Justice Washington, (a) Mr. Justice Johnson, {b) Mr. Justice Thompson, (c) and Mr. Justice Trimble, (d) each delivered a separate opinion in favour of reversing the judgment of the district court of Louisiana ; and thus establishing the validity of the insolvent law of New York. ' Mr. Chief Justice Marshall, Mr. Justice Duvall, and Mr. Justice Story dissented ; and the Chief Justice delivered an opinion at large, which will be found in 12 Wheaton, 332. A majority of the court having decided in favour of the constitution- ality of the insolvent law of New York, judgment was entered in favour of the validity of a certificate of discharge, under the state laws, in those ^eor-i *cases where the contract was made between citizens of the -■ state under whose law the discharge was obtained, and in whose courts the certificate may be pleaded. This cause was afterwards further argued by the same counsel, upon the points reserved, — as to the effect of such a discharge in respect to a contract made with a citizen of another state, and where the certificate was pleaded in the courts of another state, or of the United States. The questions presented by the plea of the statute of limitations of New York, and also upon the amount of the judgment, were also dis- cussed. Mr. Justice Johnson. I am instructed by the majority of the court finally to dispose of this cause. The present majority is not the same which determined the general question on the constitutionality of state insolvent laws, with reference to the violation of the obligation of con- tracts.- I now stand united with the minority on the former question, and, therefore, feel it due to myself and the community to maintain my consistency. The question now to be considered is, whether a discharge of a debtor under a state insolvent law, would be valid against a creditor or citizen of another state, who has never voluntarily subjected himself to the state laws, otherwise than by the origin of his contract. (a) Opinion, 12 Wheaton, 254. (A) Opinion, 13 Wheaton, 271. (c) Opinion, 12 Wheaton, 293. (rf) Opinion, 12 Wheaton, 313. 430 JANUARY TERM, 1827. 535 [Ogden V. Saunders.] As between its own citizens, whatever be the origin of the contract, tliere is now no question to be made on the effect of such a discharge; nor is it to be questioned, that a discharge not valid under the constitu- tion in the courts of the United States, is equally invalid in the state courts. The question to be considered goes to the invalidity of the discharge altogether, and, therefore, steers clear of that provision in the constitution which purports to give validity in every state to the records, judicial proceedings, and so forth, of each state. The question now to be considered, was anticipated in the case of Sturges V. Crowninshield, when the court, in the close of the opinion delivered, declared, that it means to confine its views to the case then under consideration, and not to commit itself as to those in which the interests and rights of a citizen of another state are implicated. The question is one partly international, partly constitutional. My opinion on the subject is briefly this : that the provision in the consti- tution which gives the power to the general government to establish tribunals of its own in every state, in order that the citizens of other states or sovereignties might therein prosecute their rights under the jurisdiction of the United States, had for its object an harmonious dis- tribution of justice throughout the union; to confine the states, in the *exercise of their judicial sovereignty, to cases between their r^Kna own citizens ; to prevent, in fact, the exercise of that very power <- over the rights of citizens of other states, which the origin of the con- tract might be supposed to give to each state ; and thus, to obviate that conflictus legum, which has employed the pens of Huberus and various others, and which any one who studies the subject will plainly perceive, it is infinitely more easy to prevent than to adjust. These conflicts of power and right necessarily arise only after con- tracts are entered into. Contracts, then, become the appropriate sub- jects of judicial cognisance; and if the just claims which they give rise to, are violated by arbitrary laws, or if the course of distributive justice be turned aside, or obstructed by legislative interference, it becomes a subject of jealousy, irritation, and national complaint or re- taliation. It is not unimportant to observe, that the constitution was adopted at the very period when the courts of Great Britian were engaged in adjusting the conflicts of right which arose upon their own bankrupt law, among the subjects of that crown in the several dominions of Scotland, Ireland, and the West Indies. The first' case we have on the effect of foreign discharges, that of Ballantine v. Golding, occurred in 1783, and the law could hardly be held settled before the case of Hunter v. Potts, which was decided in 1791. Any one who will take the trouble to investigate the subject, will, I think, be satisfied, that although the British courts profess to decide upon a principle of universal law, when adjudicating upon the effect of a foreign discharge, neither the passage in Vattel, to which they con-i. stantly refer, nor the practice and doctrines of other nations, will sus- tain them in the principle to the extent in which they assert it. It was all-important to a great commercial nation, the creditors of all the rest of the world, to maintain the doctrine as one of universal obliga- tion, that the assignment of the bankrupt's effects, under a law of the country of the contract, should carry the interest in his debts, wherever ^ 431 526 SUPREME COURT. [Ogden V. Saunders.] his debtor may reside; and that no foreign discharge of his debtor should operate against debts contracted with the bankrupt in his own country. But I think it perfectly clear, that in the United States a different doctrine has been established ; and since the power to discharge the bankrupt is asserted on the same principle with the power to as- sign his debts, that the departure from it in the one instance, carries with it a negation of the principle altogether. It is vain to deny that it is now the established doctrine in England, that the discharge of a bankrupt shall be effectual against contracts of the state that give the discharge, whatsoever be the allegiance or coun- *5271 ^^^ *of the creditor. But I think it equally clear, that this is a J rule peculiar to her jurisprudence, and that reciprocity is the general rule of other countries; that the effect given to such discharge is so much a matter of comity, that the states of the European conti- nent in all cases reserve the right of deciding whether reciprocity will not operate injuriously upon their own citizens. Huberus^ in his third axiom on this subject, puts the effect of such laws upon the ground of courtesy, and recognises the reservation that I have mentioned ; other writers do the same. I will now examine the American decisions on this subject; and, first, in direct hostility with the received doctrines of the British courts, it has been solemnly adjudged in this court, and, I believe, in every state court of the union, that, notwithstanding the laws of bankruptcy in England, a creditor of the bankrupt may levy an attachment on a debt due the bankrupt in this country, and appropriate the proceeds to his own debt. In the case of Harrison v. Sterry, 5 Crunch, 298, 332, 2 Cond. Rep. 360, a case decided in this court in 1809, upon full argument, and great deliberation, and in which all the English cases were quoted, it is expressly adjudged, "that in the case of a contract made with foreigners in a foreign country, the bankrupt laws of the foreign country are incapable of operating a legal transfer of property in the United States," and judgment was given in favour of the attaching creditors, against the claim of the foreign assignees. In that case, also, another important doctrine is established in hos- tility with the British doctrine. For the United States had interposed a claim against the English assignees, in order to obtain satisfaction from the proceeds of the banki-upt's effects in this country, for a debt contracted in Great Britain. And this court decreed accordingly, ex- pressly restricting the power of the country of the contract to its con- coction and exposition. The language of the court is, "the law of the place where a contract is made, is, generally speaking, the law of the contract; that is, it is the law by which the contract is expounded. But the right of priority forms no part of the contract itself. It is extrinsic, and is rather a per- sonal privilege, dependent on the laws of the place where the property lies; and where the court sits which decides the cause." And, accordingly, the law of the United States was sustained, which gave the debts due the bankrupt here, to satisfy a debt contracted in England, to the prejudice of the law of England, which gave the same debt to the assignees of the bankrupt. It cannot be necessary to go farther than this case to establish, that, 432 JANUARY TERM, 1827. 528 [Ogden V. Saunders.] *so far as relates to the foreign creditor, this country does not r*,coo recognise the English doctrine, that the bankrupt law of the L country of the contract is paramount in disposing of the rights of the bankrupt. The United States pass a law Which asserts the right to appropriate a debt due a foreign bankrupt, to satisfying a debt due itself, and in- curred by that bankrupt in his own country. The assignees of that bankrupt question this right, and claim the debt as legally vested in them by the law of the country of the contract, and maintain that the debt due the United States, being contracted in Great Britain, was subject to the laws of Great Britain, and, therefore, entitled only to share in common with other creditors in the proceeds of the bankrupt's effects ; that the debt so appropriated by the law of the United States to its exclusive benefit was, as to all the bankrupt's contracts, or cer- tainly as to all English contracts, vested in the assignees, on interna- tional principles, principles which gave effect to the English bankrupt laws, so vesting that debt paramount to the laws of other countries. In giving effect to the law of the United States, this court overrules that doctrine; and, in the act of passing that law, this government asserts both the power over the subject, and the right to exercise that power without a violation of national comity ; or has at least taken its stand against that comity, and asserted a right to protect its own inte- rests, which, in principle, is equally applicable to the interests of its own citizens. It has had, in fact, regard to the lex loci rei sitae, as existing in the person and funds of the debtor of the bankrupt, and the rights of self- preservation, and duty of protection to its own citizens, and the actual allegiance of the creditor and debtor, not the metaphysical allegiance of the contract, on which the foreign power is asserted. It would be in vain to assign the decision of this court in Harrison v. Sterry, or the. passing of the law of the United States, to the general preference which the government may assert in the payment of its own debt, since that preference can only exist to the prejudice of its own citizens, whereas, the precedence there claimed and conceded operated to the prejudice of British creditors. The case of Baker v. Wheaton, adjudged in the courts of Massachu- setts in the time of chief justice Parsons, 5 Mass. Rep. 509, is a very strong case upon this subject. That also was argued with great care, and all the British cases reviewed ; the' gourt took time to deliberate, and the same doctrine was maintained, in the same year and the same month, with Harrison v. Sterry, and certainly without any communi- cation between the two courts. The case was this : one Wheaton gave a promissory note to one *Chandler, both being at that time citizens and inhabitants of r^con Rhode Island. Wheaton was discharged under the bankrupt L laws of Rhode Island, both still continuing citizens and inhabitants of the same state, and the note remaining the property of Chandler. Sub- sequent to the discharge, Chandler endorses the note to Baker, and Wheaton is arrested in Massachusetts. He pleads the discharge in bar, and the court, in deciding, expresses itself thus : " When, there- fore, the defendant was discharged from that contract, lege loci, the promisee was bound by that discharge, as he was a party to the laws VoL.VI.-55 2M 433 529 SUPREME COURT. [Ogden V. Saunders.] of that state, and assenting to their operation. But if, when the con- tract was made, the promisee had not been a citizen of Rhode Island, he would not have been bound by the laws of it or any other state, and holding this note at the time of the discharge, he might afterwards maintain an action upon it in the courts of this state." And again, page 311, "if the note had been transferred to the plaintiff, a citizen of this state, whilst it remained due and undischarged by the insolvent laws of Rhode Island, those laws could not affect his rights in the courts of law in this state, because he is not bound by them.'' This, it will be observed, regards a contract acknowledged to be of Rhode Island origin. There is another case reported in the decisions of the same state, (vol. 10, p. 337,) which carries this doctrine still farther, and, I appre- hend, to a length which cannot be maintained. This was the case of Watson v. Bourne, in which Watson, a citizen of Massachusetts, had sued Bourne in a state court, and obtained judg- ment. Bourne was discharged under the insolvent laws of that state, and being afterwards found in Massachusetts, was arrested on an action of debt upon the judgment. He pleads the discharge; plaintiff replies, that he, plaintiff, was a citizen of Massachusetts, and therefore, not precluded by the discharge. The origin of the debt does not appear from the report, and the argument turned wholly on the question, whether by entering judgment in the court of the state, he had not subjected his rights to the state laws pro tanto. The court overruled the plea, and recognised the doctrine in Baker V. Wheaton, by declaring, " that a discharge of that nature can only operate where the law is made by an authority common to the creditor and debtor in all respects, where both are citizens or subjects." I have little doubt that the court was wrong in denying the effect of the discharge as against judgments rendered in the state courts, when the party goes voluntarily and unnecessarily into those courts ; but the decision shows, in other respects, how decidedly the British doctrine is repelled in the courts of that state. *'i'?m *The British doctrine is also unequivocally repelled in a very J learned opinion delivered by Mr. Justice Nott, in the court of the last resort in South Carolina, and in which the whole court, con- sisting of the common law judges of the state, concurred. This was in the case of the assignees of Topham v. Chapman et al., in which the rights of the attaching creditor were maintained against those of the assignees of the bankrupt, 1 Constitutional Reports, p. 253, and that the same rule was recognised at an early day in the court of Pennsyl- vania, appears from the leading case of Phillips v. Hunter, 2 H. Black. 402, in which a British creditor, who had recovered of a debtor of the bankrupt in Pennsylvania, was compelled by the British courts to refund to the assignees in England, as for money had and received to their use. I think it, then, fully established, that in the United States a creditor of the foreign bankrupt may attach the debt, due the foreign bankrupt, and apply the money to the satisfaction of his peculiar debt, to the prejudice of the rights of the assignees or other creditors. I do not here speak of assignees, or rights created, under the bank- rupt's own dee4i tho.se ^Um on a different ground, and do not affect 434 JANUARY TERM, 1827. 530 [Ogden V. Saunders.] this question. I confine myself to assignments, or transfers, resting on the operation of the laws of the country, independent of the bankrupt's deed ; to the rights and liabilities of debtor, creditor, bankrupt, and assignees, as created by law. What is the actual bearing of this right to attach, so generally re- cognised by our decisions 1 It imports a general abandonment of the British principles ; for, ac- cording to their laws, the assignee alone has the power to release the debtor. But the right to attach necessarily implies the right to release the debtor, and that right is here asserted under the laws of a state which is not the state of the contract. So, also, the credit of the bankrupt is, by the laws of his country, entitled to no more than a rateable participation in the bankrupt's effects. But the right to attach imports a right to exclusive satisfac- tion, if the effects so attached should prove adequate to make satis- faction. The right to attach also imports the right to sue the bankrupt ; and who would impute to the bankrupt law of another country, the power to restrain the citizens of these states in the exercise of their right to go into the tribunals of their own country for the recovery of debts, wherever they may have originated ? Yet, universally, after the law takes the bankrupt into his own hands, his creditors are prohibited from suing. Thus much for the law of this case in an international view. I will consider it with reference to the provisions of the constitution. *I have said, above, that I had no doubt the erection of a dis- r^coi tinct tribunal for the resort of citizens of other states, was intro- '- duced, ex industria, into the constitution, to prevent, among other evils, the assertion of a power over the rights of the citizens of other states, upon the metaphysical ideas of the British courts on the subject of juris- diction over contracts. And there was good reason for it, for upon that principle it is that a power is asserted over the rights of creditors which involves a mere mockery of justice. Thus, in the case of Burrows v. Jemino, (reported in 2 Strange, and better reported in Moseley and some other books,) the creditor, residing in England, was cited, probably by a placard on a door-post in Leghorn, to appear there to answer to his debtor ; and his debt passed upon by the court, perhaps, without his having ever heard of the institution of legal process to destroy it. The Scotch, if I remember correctly, attach the summons on the flag-staff, or in the market-place, at the shore of Leith ; and the civil law process by proclamation, or viis et modis, is not much better, as the means of subjecting the rights of foreign creditors to their tribunals. All this mockery of justice, and the jealousies, recriminations, and perhaps retaliations, which might grow out of it, are avoided, if the power of the states over contracts, after they become the subject ex- clusively of judicial cognisance, is limited to the controversies of their own citizens. And it does appear to me almost incontrovertible that the slates can- not proceed one step farther without exercising a power incompatible with the acknowledged powers of other states, or of the United States, and with the rights of the citizens of other states. 435 531 SUPREME COURT. [Ogden V. SaunJers.] Every bankrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected, are entitled to a hearing. Hence every system, in common with the particular system now before us, professes to summon the creditors before some tribunal, to show cause against granting a dis- charge to the bankrupt. But on what principle can a citizen of another state be forced into the courts of a state for this investigation ? The judgment to be passed is to prostrate his rights ; and on the subject of these rights the consti- tution exempts him from the jurisdiction of the state tribunals, without regard to the place where the contract may originate. In the only tribunal to which he owes allegiance, the state insolvent or bank- rupt laws cannot be carried into effect ; they have a law of their own *5S21 **^° *^® subject ; (a) and a certificate of discharge under any J other law would not be acknowledged as valid, even in the courts of the state in which the court of the United States that grants it is held. Where is the reciprocity ? Where the reason upon which the state courts can thus exercise a power over the suitors of that court, when that court possesses no such power over the suitors of the state courts ? In fact, the constitution takes away the only ground upon which this eminent dominion over particular contracts can be claimed, which is that of sovereignty. For the constitutional suitors in the courts of the United States are not only exempted from the necessity of resorting to the state tribunals, but actually cannot be forced into them. If, then, the law of the English courts had ever been practically adopted in this country in the state tribunals, the constitution has produced such a radical modification of state power over even their own contracts, in the hands of individuals not subject to their jurisdiction, as to furnish ground for excepting the rights of such individuals from the power which the states unquestionably possess over their own contracts, and their own citizens. Follow out the contrary doctrine in its consequences, and see the absurdity it will produce. The constitution has constituted courts professedly independent of state power in their judicial courts; and yet the judgments of those courts are to be vacated, and their prisoners set at large, under the power of the state courts or of the state laws, without the possibility of protecting themselves from its exercise. I cannot acquiesce in an incompatibility so obvious. No one has ever imagined that a prisoner, in confinement under pro- cess from the courts of the United States, could avail himself of the insolvent laws of the state in which the court sits. And the reason is, that those laws are municipal and peculiar, and appertaining exclu- sively to the exercise of state power in that sphere in which it is sove- reign ; that is, between its own citizens, between suitors subjected to state power exclusively, in their controversies between themselves. In the courts of the United States, no higher power is asserted than that of discharging the individual in confinement under its own process. This affects not to interfere with the rights of creditors in the state (a) Act of congress of January 6th, 1800, cli. 4, vol. 3, p. 301. 436 JANUARY TERM, 1827. 532 [Ogden V. Saunders.] courts against the same individual. Perfect reciprocity would seem to indicate that no greater power should be exercised under state author- ity over the rights of suitors who belong to the United States jurisdic- tion. Even although the principle asserted in the British courts, of su- preme *and exclusive power over their own contracts, had ob- r#.coq tained in the courts of the United States, I must think that <- power has undergone a radical modification by the judicial powers granted to the United States. I, therefore, consider the discharge under a state law, as incompe- tent to discharge a debt due a citizen of another state ; and it follows, that the plea of a discharge here set up, is insufficient to bar the rights of the plaintiff. It becomes necessary, therefore, to consider the other errors assigned in behalf of the defendant; and first, as to the plea of the act of limita- tions. The statute pleaded here is not the act of Louisiana, but that of New York ; and the question is not raised by the facts or averments, whether he could avail himself of that law if the full time had run out before his departure from New York, as was supposed in argument. The plea is obviously founded on the idea, that the statute of the state of the contract, was generally pleadable in any other state, a doctrine that will not bear argument. The remaining error assigned has regard to the sum for which the judgment is entered, it being for a greater amount than the nomimal amount of the bills of exchange on which the suit was brought, and which are found by the verdict. There has been a defect of explanation on this subject ; but, from the best information afforded us, we consider the amount for which judgment is entered, as made up of principal, interest, and damages, and the latter as being legally incident to the finding of the bills of ex- change, and their non-payment, and assessed by the court under a local practice consonant with that by which the amount of written contracts is determined, by reference to the prothonotary, in many other of our courts. We, therefore, see no error in it. The judgnjent below will, therefore, be affirmed. And the purport of this adjudication, as I understand it, is, that as between citizens of the same state, a discharge of a bankrupt by the laws of that state, is valid as it effects posterior contracts ; as against creditors, citizens of other states, it is invalid as to all contracts. The propositions which I have endeavoured to maintain in the opinion which I have delivered are these : 1st. That the power given to the United States to pass bankrupt laws is not exclusive. 2d. That the fair and ordinary exercise of that power by the states does not necessarily involve a violation of the obligation of contracts, multo fortiori of posterior contracts. *3d. But when, in the exercise of that power, the states pass rn^xoA beyond their own limits, and the rights of their own citizens, and j- act upon the rights of citizens of other states, there arise a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incom 2m2 437 534 SUPREME COURT. [Mason V. Haile.] patible with the rights of other states, and with the constitution of tlie United States. Mr. Justice Washington, Mr. Justice Thompson, and Mr. Justice Trimble, dissented. ' Mr. Chief Justice Marshall, Mr. Justice Duvall, and Mr. Justice Story, assented to the judgment, which was entered for the defendant in error. Judgment affirmed. Constitutionality of stale insolvent laws. At January term, 1832, in the case of Boyle v. Zacharie and Turner et at., 6 Peters, 348, the counsel for the appellant was about to argue the question of the validity of state insolvent laws, when Mr. Chief Justice Marshall said : " the judges of this court, who were in the minority of the court upon the general question as to the constitutionality of state insolvent laws, concur in the opinion of Mr. Justice Johnson, in the case of Ogden v. Saunders, 13 Wheaton, 213. That opinion is therefore to be deemed the opinion of the other judges, who assented to that judgment. Whatever principles are established in that opinion, are to be considered no longer open for controversy, but the settled law of the court." Afterwards, at the same term, and in the same case, the chief justice said, " the effect of a discharge under an insolvent law of a state, is at rest ; so far as it depends on the antecedent decisions made by this court. The ultimate opinion delivered by Mr. Justice Johnson, in the case of Ogden v. Saunders, 12 Wheat. 213, 258, was concurred in and adopted by the three judges who were in the minority on the general question of the constitutionality of state insolvent laws. So far, then, as decisions upon the subject of state insolvent laws have been made by this court, they are to be deemed final and conclusive." 6 Peters, 635. Cases decided in the courts of the United States, as to state insolvent and bankrupt laws. See notes, 4 Cond. Rep. 422. To those cases may be added the following: The plaintiff below, a citizen of the state of Kentucky, instituted a suit against the defendant, a citizen of Louisiana, for the recovery of a debt incurred in 1 808, and the defendant pleaded his discharge by the bankrupt law of Louisiana in 1811 ; under which, according to the pro- visions of the law, " as well his person as his future effects" were for ever discharged " from all the claims of his creditors." Under this law, the plaintiff, whose debt was specified in the list of the defendant's creditors, received a dividend of ten per cent, on his debt, declared by the assignees of the defendant : held, that the plaintiff, by voluntarily making himself a party to those proceedings, abandoned his extra-territorial immunity from the operation of the bankrupt law of Louisiana ; and was bound by that law to the same extent to which the citizens of Louisiana were bound. Clay v. Smith, 3 Peters, 411. *535] *Mason v. Haile. 12 Wheaton's Reports, 370. The states have a right to regulate, or abolish, imprisonment for debt, as a part of the remedy for enforcing the performance of contracts. Where the condition of a bond for the jail limits, in Rhode Island, required the party to re- main a true prisoner in the custody of the keeper of the prison, and within the limits of the prison, "until he shall be lawfully discharged, without committing any manner of escape or escapes during the time of restraint, then this obligation to be void, or else to remain in full force and virtue :" held, that a discharge, under the insolvent laws of the state, obtained from the proper court, in pursuance of a resolution of the legislature, and discharging the 438 JANUARY TERM, 1827. 535 [Mason v. Haile.] party from all his deMs, &c., " and from all imprisonment, arrest, and restraint of his person therefor," was a lawful discharge, and that his going at large under it was no breach of the condition of the bond. THIS was an action of debt, brought in the circuit court of Rhode Island,, upon two several bonds given by the defendant, Haile, to the plaintiff. Mason, and one Bates, whom the plaintiff survives, one of which bonds was executed on the 14th, and the other on the 29th of March, 1814. The condition in both bonds was the same, except as to dates and sums, and is as follows : , " The condition of the above obligation is such, that if the above bounden Nathan Haile, now a prisoner in the state's jail, in Provi- dence, within the county of Providence, at the suit of Mason and Bates, do and shall from henceforth continue to be a true prisoner, in the custody, guard, and safe-keeping of Andrew Waterman, keeper of said prison, and in the custody, guard, and safe-keeping of his deputy, officers, and servants, or some one of them, within the limits of said prison, until he shall be lawfully discharged, without, committing any manner of escape or escapes, during the time of restraint, then this obligation to be void, or else to remain in full force and virtue." To the declaration upon these bonds, the defendant pleaded several pleas, the substance of which was, that in June, 1814, after giving the bonds, the defendant presented a petition to the legislature of Rhode Island, praying for relief, and the benefit of an act passed in June, 1756, entitled, " an act for the relief of insolvent debtors," and that, in the mean time, all proceedings against him for debt might be stayed, and he be liberated from jail, on giving bonds to return to jail in case his petition shall not be granted. Upon this petition, the legislature, in February, 1815, passed the following resolutioh : " on the petition of Nathan Haile, praying, for the reasons therein stated, that the benefit *of an act, entitled, ' an act for the relief of insolvent debtors,' r^coe passed in the year 1756, be extended to him, voted, that said ^ petition be continued till the next session of this assembly; and that, in the mean time, all proceedings against him, the said Haile, on account of his debts, be stayed ; and that the said Haile be liberated from his present confinement, in the jail, in the county of Providence, on his giving sufficient bond to the sheriff of said county, conditioned to return to jail in case said petition is not granted." That, on the 28th of February, 1815, he gave sufficient bond, with surety, to the sheriff, conditioned to return to jail, in case the petition should not be granted, and, thereupon, the sheriff did liberate and discharge him from his said confinement, in said jail, and permit him to go at large, out of said Waterman's custody, and the custody of the keeper of said prison, his deputy, officers, and servants, and out of the limits of said jail and jail-yard; and he, said Haile, did, upon being so liberated, depart and go at large out of the same accordingly, and so continued at large and liberated, until the prayer of said petition was granted by the legisla- ture, at the February session, 1816, and ever since, as lawfully he might. That, in February, 1816, the legislature, upon a due hearing, granted the prayer of the defendant's petition, and passed the follow- ing resolution : " on the petition of Nathan Haile, of Foster, praying, for the reasons therein stated, that the benefit of an act passed in June, 139 536 SUPREME COURT. [Mason v. Haile.] 1756, for the relief of insolvent debtors, may be extended to him ; voted, that the prayer of the petition be, and the same is hereby granted." That the defendant afterwards, in pursuance of the above resolution, and of the laws of the state, received in due form, from the proper court, a judgment, "that he should be, and thereby was, fully dis- charged of and from all debts, duties, contracts, and demands, of every name, nature, and kind, outstanding against him, debts due to the state aforesaid, and to the United States, excepted, and from all imprison- ment, arrest, and restraint of his person therefor." To the pleas so pleaded the plaintiff demurred ; there was a joinder in demurrer ; and, on the argument of the cause, the opinions of the judges of the court below were opposed, upon the question whether the defendant was entitled to judgment, on the ground that the matters set forth on his part in his pleas, were sufficient to bar the action, or whether the plaintiff was entitled to judgment upon the demurrers and joinders. The question was thereupon certified to this court for final decision. Mr. Webster and Mr. Bliss, for the plaintiflT; Mr. Whipple and Mr. Wheaton, for the defendant. Cases cited: Ogden v. Saunders, 6 Cond. Rep. 523. Olney v. ^^o7T *Arnold, 3 Dall. 308, 1 Cond. Rep. 136. Calder v. Bull, 3 DalL J 386, 1 Cond. Rep. 172. Sturges v. Crowninshield, 4 IVheat. Rep. 200, 201, 4 Cond. Rep. 409. Mr. Justice Thompson delivered the opinion of the court. The question in this case arises upon the following certificate of a division of opinion of the judges of the circuit court of the United States for the district of Rhode Island. "This cause came on to be heard, and was argued by counsel on both sides, and thereupon the following question occurred : viz., whether, upon the amended pleas in this case, severally pleaded to the first and second counts of the plaintiff's decla- ration, and to which there are demurrers, and joinders in demurrer, the defendant is entitled to judgment, on the ground that the matters set forth therein, on the part of the defendant, are sufficient to bar the action; or whether the plaintiff is entitled, upon said demurrers and joinders, to judgment ? Upon which question the court was divided in opinion." It is not understood by this court, that any question, as to the suffi- ciency of the pleas, in point of form, is drawn under examination, but simply whether, upon the merits, the matter thereby set up is sufficient to bar the action. The action is founded upon two several bonds, given by the defendant to the plaintiff, and one Bates, whom the plaintiff survives, one dated the 14th, and the other the 29th of March, 1814. The condition in both bonds is the same, except as to dates and sums, and is as follows : " the condition of the above obligation is such, that if the above bounden Nathan Haile, now a prisoner in the state's jail, in Providence, within the county of Providence, at the suit of said Mason and Bates, do, and shall from henceforth continue to be a true prisoner, in the custody, guard, and safe-keeping of Andrew Water- man, keeper of said prison, and in the custody, guard, and safe-keeping of his deputy, officers, and servants, or some one of them, within the limits of said prison, until he shall be lawfully discharged, without 440 JANUARY TERM, 1827. 537 [Mason V. Haile.j , committing any manner of escape or escapes during the time of re- straint, then this obligation to be void, or else to remain in full force and virtue." The defence set up by the pleas, to show there has been no breach of the condition of the bond, is substantially, that in June, 1814, after giving the bond in question, the defendant presented a petition to the. legislature of Rhode Island, praying relief, and the benefit of the in- solvent act of 1756; and that, in the mean time, all proceedings against his person and estate, for the collection of debts, might be stayed, and he be liberated from jail, on giving bonds to return in case' his ♦petition should not be granted. Upon this petition, the legisla- r#coo tare, in February, 1816, passed the following resolution : " on '- the petition of Nathan Haile, praying, for the reasons therein stated, that the benefit of an act, entitled, an act for the relief of insolvent debtors, passed in the year 1756, be extended to him, voted, that said petition be continued until the next session of this assembly ; and that, in the mean time, all proceedings against the said Haile, on account of his debts, be stayed ; and that the said Haile be liberated from his pre- sent imprisonment, in the jail, in the county of Providence, on his giving sufficient bond to the sheriff of the county, conditioned to return to jail in case said petition is not granted." The defendant, after the passing of this resolution, gave the bond required by it, and, on the 28th of the sams month, was discharged from imprisonment, and has ever since been at large, out of the custody of the sheriff. In February, 1816, the legislature, upon a due hearing, granted the prayer of the defendant, and passed the following resolution : " on the petition of Nathan Haile, of Foster, praying, for the reasons therein stated, that the benefit of an act passed in June, 1756, for the relief of insolvent debtors, may be ex- tended to him, voted, that the prayer of the said petition be, and the same is hereby granted." By the granting of the prayer of the petition, the condition of the second bond given to the sheriff was complied with, and the bond became extinguished. The defendant afterwards proceeded to take the benefit of the insol- vent act revived in his favour, according to the statute provisions, and received in due form from the proper court, a judgment, "that he should be, and thereby was fully discharged of and from all debts, con- tracts and demands, of every name, nature and kind, outstanding against him', debts due to the state aforesaid, or to the United States, excepted, and from all imprisonment, arrest, and restraint of his person therefor." The insolvent act of 1756 is not considered in force as a general and permanent law, but the legislature of Rhode Island has been in the constant habit of entertaining petitions, like the present, and has, by the general law of 1798, (now in force,) prescribed the mode by which such petitions are to be regulated, and in case of grant- ing the prayer of the petition, the course is to pass an act or resolution, giving the benefit of the act of 1756 to the petitioner, and thus, in effect, reviving it for his particular benefit. So, that the mode pursued to obtain the discharge of the defendant, as set out in the pleas, was according to the established course of proceeding in cases of insolvency, and in conformity to the laws of Rhode Island, by which the defend- ant was discharged from all his contracts, and from imprisonment. The effect of this discharge upon the original judgment against Vol. VI.— 58 441 539 SUPREME COURT. [Mason v. Haile.] ^roQ-i *Haile is not now drawn in question. The only inquiry is, -■ whether he has violated the condition of his bonds of March, 1814, by going at large, under the authority and sanction of the reso- lutions of the legislature, as before stated. His bond required him to remain a true prisoner until he should be lawfully discharged, without committing any manner of escape during the time of restraint. The bond is not that he shall remain a true prisoner until the debt shall be paid. Nor is there any thing upon the face of the bond, or, if we look out of it, to the known and established laws and usages in that state, calling for such a construction. A lawful discharge, in its general sig- nification, will extend to, and be satisfied by, any discharge obtained under the legislative authority of the state. And it is not unreason- able to consider such prison bonds as given subject to the ordinary and well-known practice in Rhode Island, for the legislature to entertain petitions in the manner pursued by the defendant, to obtain the benefit of the insolvent act of 1756, in the manner in which these petitions are received and proceeded upon, as prescribed by the act of 1798. And, indeed, this cannot strictly be considered a private contract between the parties, but rather as a statute engagement, imposed by an act of the legislature, and as a part of the process under which the defendant was held as a prisoner. And with the full knowledge of this regula- tion and practice, it is hardly to be presumed, that such discharges were not understood to be lawful discharges. And the same remarks will apply to the term escape in the bond, which can mean no more than a departure from the limits without lawful authority. Suppose the legislature, after the execution of this bond, had enlarged the jail limits? It surely would not have been an escape for the defendant to have availed himself of the enlarged limits, and gone beyond his former bounds. And yet, if the limits prescribed at the time the bond was executed, are to govern the effect and operation of the bond, it would be an escape. Such bonds may well be considered as an enlargement of the prison limits, and a mere modification of the imprisonment, ac- cording to the provisions of the laws of Rhode Island. Can it be doubted but the legislatures of the states, so far as relates to their own process, have a right to abolish imprisonment for debt alto- gether, and that such law might extend to present, as well as future imprisonment? We are not aware that such a power in the states has ever been questioned. And if such a general law would be valid under the constitution of the United States, where is the prohibition to be found, that denies to the state of Rhode Island the right of applying the same remedy to individual cases? This is a measure which must be regulated by the views of policy and expediency entertained by the *UCf\ *^^^^^ legislatures. Such laws act merely upon the remedy, and -I that in part only. They do not take away the entire remedy, but only so far as imprisonment forms a part of such remedy. The doctrine of this court in the case of Sturges v. Crowninshield, 4 Wheat. Rep. 200, 4 Cond. Rep. 409, applies with full force to the present case. " Imprisonment of the debtor," say the court, " may be a punishment for not performing his contract, or may be allowed as a mean for in- ducing him to perform it. But a state may refuse to inflict this punish- ment, or may withhold it altogether, and leave the contract in full 442 JANUARY TERM, 1827. 540 [Columbian Insurance Company v. Catlett.] force. Imprisonment is no part of the contract, and simply to release the prisoner, does not impair its obligation." In whatever light, therefore, the question is viewed, no breach of the condition of the bond, according to its true sense and interpretation, has been committed. The liberation of the defendant from confinement, on his giving bond to the sheriff to return to ja~il in case his petition for a discharge should not be granted, was sanctioned by the due exercise of legislative power, and was analogous to extending to him more en- larged jail limits, and would not be considered an escape. And both this and the final discharge, so far, at all events, as it related to the imprisonment of the defendant, affected the remedy in part only, and was in the due and ordinary exercise of the powers vested in the legis- lature of Rhode Island, and was a lawful discharge, and no escape, and of course, no breach of the condition of the bond in question. It must, accordingly, be certified to the circuit court, that the matters set forth in the defendant's amended pleas, are sufficient to bar the plaintiff's action. Mr. Justice Washington dissented. Certificate, that the matters set forth in the defendant's pleas are sufficient to bar the plaintiff^s action. *The Columbian Insurance Company, Plaintiffs in error, [*541 V. Catlett, Defendant in error. 12 Wheaion's Reports, 383. A policy for ten thousand dollars upon a voyage " at atid from Alexandria to St, Thomas, and two other ports in the West Indies, and back to her port of discharge in the United States, upon all lawful goods and merchandise, laden or to be laden on board the ship, &c., begin- ning the adventure upon the said goods and merchandise from the lading at Alexandria, and continuing the same until the said goods and merchandise shall be safely landed at St. Tho- mas, &c., and the United States aforesaid ;" is an insurance upon every successive cargo taken on board in the course of the voyage out and home, so as to cover the risk of a return cargo, the proceeds of the sales of the outward cargo. Such a policy covers an insurance of ten thousand dollars during the whole voyage out and home, so long as the assured has that amount of property on board, without regard to the fact of a portion of the original cargo having been safely landed at an intermediate port before the loss. Where the cargo, in the course of the outward voyage, and before its termination, was perma- nently separated from the ship by the total wreck of the latter, and the cargo being perish- able in its nature, though not injured to one-half its value, it became necessary to sell it, the further prosecution of the voyage with the same ship or cargo became impracticable: held, that this was a technical total loss, on account of the breaking up of the voyage. [See note at the end of the case.] Whether a delay at a particular port constitutes a deviation, depends upon the usage of trade with reference to the object of selling the cargo. W^here different ports are to be visited for this purpose, the owner has a right to limit the price at which the master may sell to a rea- sonable extent ; and a delay at a particular port, if bona fide made for that purpose, does not constitute a deviation, though occasioned by this restriction. [See note at the end of the case.] Freight is not a charge upon the salvage of cargo in the hands of the underwriters, whether the assured is owner of the ship or not. 443 541 SUPREME COURT. [Columbian Insurance Company v. Catlett.] MR. WEBSTER and Mr. Taylor, for the plaintiffs in error ; Mr, Wirt and Mr. Swann, for the defendant in error. Mr. Justice Story delivered the opinion of the court. This is a writ of error to the circuit court for the district of Colum- bia, sitting at Alexandria. The original action was upon a policy of insurance, dated the 16th of February, 1822, whereby the Columbian Insurance Company in- sured the plaintiff ten thousand dollars, lost or not. lost, at and from Alexandria to St. Thomas, and two other ports in the West Indies, and back to her port of discharge in the United States, upon all kinds of lawful goods or merchandise, laden or to be laden on board the ship ♦5421 *^^"^*^ *^^ Commerce, &c., beginning the adventure upon the -■ said goods and merchandise from the loading at Alexandria, and continuing the same until the said goods and mprchandise shall be safely landed at St. Thomas, &c., and the United States. The goods and merchandise to be valued as interest may appear. The policy con- tained the usual risks, and the premium agreed on was three and three- quarters per cent., to return half per cent, for each port not used or attempted, and no loss happens. There are other provisions in the policy, which will be hereafter commented on. The breach alleged in the declaration is a total loss by perils of the seas, with the usual aver- ments of notice and non-payment. The trial was had upon the general issue, and a verdict found by consent for the plaintiff, for ten thousand dollars, subject to the opinion of the court upon the demurrer to evidence filed in the case. It was farther agreed that, if it should be the opinion of the court that the plaintiff was not entitled to recover the full amount of the insurance, but is entitled to an average loss, then a reference to ascertain that average, or to modify the amount of the verdict in any other respect as to the sum, should be made to an auditor, and judgment should be given for the sum finally reported and confirmed by the court, subject, however, to the exceptions of either party to any opinion of the court on that subject. The reference was accordingly made, and, upon the coming in of the auditor's report, the court pronounced its opinion, and gave judgment for the plaintiff for seven thousand six hundred and fifly-six dollars fifty-seven cents, with interest from the 14th of October, 1822. From the demurrer to evidence it appeared that the ship sailed from Alexandria on her voyage about the 14th of February, 1822, having on board a cargo of two thousand two hundred and ninety-seven and a half barrels of flour of the invoice price of sixteen thousand eight hundred and eighty-seven dollars and thirty-two cents, both ship and cargo being owned by the plaintiff. On the 21st of March she arrived in safety with her cargo at St. Thomas, having met with no accident ; and she conti- nued at that port until the 30th of May following, for the purpose of sell- ing her cargo, and for no other cause. During this period the master, who was also a consignee, sold by retail five hundred and nine and a half barrels; being limited by his instructions to eight dollars per bar- rel, and not being able to procure that price for the residue of the cargo, he sailed on the 31st of May for Cape Haytien with it, and had also on board some doubloons, amounting to four hundred and eighty dollars, 444 JANUARY TERM, 1827. 543 [Columbian Insurance Company v. Catlett.] part of the proceeds of the former sales. He might have sold his whole cargo at from seven dollars and fifty cents to seven dollars and seventy- *five cents at St. Thomas. The five hundred and nine and a r^j^c^o half barrels of flour sold at St. Thomas, according to the invoice L price, amounted to three thousand five hundred and twelve dollars and ninety-nine cents, leaving the value of the cargo on board, exclusive of the doubloons, at the time of sailing from that port, according to the invoice, at twelve thousand three hundred and twenty-eight dollars and twenty-five cents. On the 6th of June the ship, with her cargo, arrived oflf Cape Hay- tien, and the captain having gone on shore, the ship stretching too far in, took the ground and was wrecked. In consequence of this disaster, one hundredland fifty-five barrels of flour were totally lost, one thousand six hundred and thirty-three were got on shore, part without injury, but the greater part damaged, and the whole was sold. The gross amount of the sales at Cape Haytien was nine thousand three hundred and ninety-one dollars and thirty-four cents, the expenses of salvage, including commissions on sales, four thousand one hundred and twenty- four dollars and seventy-two cents ; the proportion of the captain's ex- penses attaching on the cargo, two hundred and eighty-five dollars and seventy-eight cents. Of the proceeds of the sales at Cape Haytien, the sum of four thousand nine hundred and fifty-three dollars and eighty- nine cents was invested in coffee, which was shipped to Baltimore, where it produced only three thousand five hundred and seventeen dol- lars and forty cents. The plaintiff" makes a claim for freight of the outward cargo of two thousand one hundred and four dollars and twen- ty-five cents, as a proper deduction from the proceeds. As soon as the plaintiff" heard of the loss, he sent the following letter to the Insurance Company, under date of the 5th July, 1822: "Gentle- men, having received a letter from captain M'Knight, (the master,) informing me that the ship Commerce was lost, I abandon the propor- tion of the cargo that your office was interested in. Respectfully, &c." The captain's protest, and the survey of the ship, were also exhibited to the company on the 14th of August. The abandonment was never finally accepted by the directors, but sundry negotiations took place between them and the plaintiff^ which, however, led to no eff"ectual ar- rangement. The first question arising in this case, is upon the true construction of the policy itself as to the voyage insured. Is it an insurance upon the original cargo only from the time of its loading until its final dis- charge, or is it an insurance upon every successive cargo, which is taken on board in the course of the voyage out and home, so as to cover the risk of a return cargo, the proceeds of the sales of the outward cargo T The argument in behalf of the defendant is, that the risk applies upon *the terms of the policy only to the original cargo, laden at r^c^j^ Alexandria. The terms of the policy are, on a voyage, " at and L from Alexandria to St. Thomas and two other ports in the West Indies and back to her port of discharge in the United States, upon all lawful goods and merchandise laden or to be laden on board the ship, &c. ; beginning the adventure upon the said goods and merchandise, from the lading at Alexandria, and continuing the same until the said goods and merchandise shall be safely landed at St. Thomas, &c., and the United 2N 445 544 SUPREME COURT. [Columbian Insurance Company v. Catlett.] States aforesaid." It is supposed that those words tie up the adventure to the original cargo shipped at Alexandria, because the risk is to attach on the same at that port, and to continue on the same until safely landed at St. Thomas, &c., and the United States. Perhaps a very strict grammatical construction might lead to such a conclusion. But policies have never been construed in such a strict and rigid man- ner. The instrument itself is somewhat loose in its form, and has always received a liberal construction with reference to the nature of the voyage and the manifest intent of the parties. What is the nature of the present voyage ? It is upon the face of the policy plainly an in- surance upon all lawful goods, not only for the outward voyage to the West Indies, but for the homeward voyage to the United States. The underwriters must be presumed, equally with the assured, to know the nature and course of such a voyage. It is for the purpose of trade, and the exchange of the outward cargo, by sale or barter, for a return cargo of West India productions. If we could shut our eyes to the knowledge of this fact, belonging, as it does, intimately to the history and com- mercial policy of the nation itself, as disclosed in its laws, the whole evidence in the case furnishes abundant proofs of its notoriety. The true meaning of the policy is to be sought in an exposition of the words, with reference to this known course and usage of the West India trade. The parties must be supposed to contract with a tacit adoption of it as the basis of their engagements. The object of the clause under consideration may be thus rationally expounded, as in- tended only to point out the time of the commencement and termina- tion of the risk on the goods, successively, and at different periods of the voyage, constituting the cargo. It would be pushing the argument to a most unreasonable extent, to suppose that the parties deliberately contracted for risks on a homeward voyage, on goods which, according to the known course of the trade, and the very nature of the commodi- ties, were not, and could not be, intended to be brought back to the United States. We are of opinion, that the policy was for the whole voyage round, and covered any return cargo taken on board at any of the designated ports in the West Indies. This is not like the cases •'li'iT *^^^^^ ^t *^® '^^''' where a policy on goods at and from a parti- -l cular port, beginning the adventure from the loading thereof, has been held not to cover goods taken on board at an antecedent port. Those are all cases of insurance upon a single passage, unaffected by any known course or usage of trade to explain the intentions of the parties. The next question is, whether the delay at St. Thomas for seventy days was not so unreasonable as to constitute a deviation. Without question, any unreasonable delay in the ordinary progress of the voy- age avoids the policy on this account. But what delay will constitute such a deviation, depends upon the nature of the voyage, and the usage of the trade. It may be a very justifiable delay, to wait in port, and sell by retail, if that be the course of business, when such delay would be inexcusable in a voyage requiring or authorizing no such delay. The parties, in entering into the contract of insurance, are always supposed to be governed in the premium by the ordinary length of the voyage, and the course of the trade. That delay, therefore, which is necessary to accomplish the objects of the voyage according to the 446 JANUARY TERM, 1827. 545 [Columbian Insurance Company v. Catlett.] course of the trade, if bona fide made, cannot be admitted to avoid the insurance. In the present case, it is proved, that the stay at St. Tho- mas was solely for the purpose of selling the cargo, and for no other cause. But, it is said, that a sale might have taken place at St. Thomas of the whole cargo, if the orders of the owner had not contained a direction to the master limiting the sale at St. Thomas to the price of eight dollars, and that this limitation was the sole cause of the delay, and was unreasonable ; that the master ought, under the circumstances, to have sold at a lower price, or have immediately elected to go to an- other port. We are of a different opinion. In almost every voyage undertaken of this nature, where different ptorts are to be visited for the purposes of trade, and to seek markets, it is almost universal for the owner to prescribe limits of price to the sales. Such limitations have never hitherto been supposed to vary the insurance, or the rights of the party under it. It cannot be, that the master, if entitled to go to a single port only, is bound to sell at whatever sacrifice, as soon as he arrives at that port, and within the period at which he may unload, and sell, and reload a return cargo. He must, from the very nature of the case, have a discretion on this subject. If he arrives at a bad market, he must have a right to wait a reasonable time for a rise of the market, to make suitable inquiries, and to try the effect of partial and limited sales. He is not bound to sell the whole cargo at once, what- ever be the sacrifice, and thus frustrate the projected adventure. In short, he must exercise in this, as in all other cases, a sound discretion for the interest of all concerned ; and if it be fairly and reasonably exercised, it ought not to be *deemed injurious to rights secured r#.c ^z? by the policy. It is as much the true interest of the owner to ^ sell in a reasonable time, and with all proper despatch, as it is for the underwriters. To be sure, if the owner should limit the price to an extravagant sum, or the master should delay after all reasonable ex- pectations of a change of market were extinguished, such circumstances might properly be left to a jury to infer a delay amounting to a devia- tion. And here, again, as on the former point, it may be remarked, that every underwriter is presumed to know the ordinary course of the trade, and to regulate his proceedings accordingly. But, it is said, that there is no sufficient evidence of the usage of trade in the present case. It is to be remembered, that this is a case which comes before this court upon a demurrer to evidence. The plaintiff was not bound to have joined in the demurrer without the defendant's having distinctly admitted, upon the record, every fact which the evidence introduced on his behalf conduced to prove ; and that when the joinder was made, without insisting on this preliminary, the court is at liberty to draw the same inferences in favour of the plaintiff, which the jury might have drawn from the facts stated. The evidence is taken most strongly against the party demurring to the evidence. This is the settled doctrine in this court, as recognised' in Pawling v. The United States, 4 Cranch's Rep. 219, 2 Cond. Rep. 92; and Fowle «.. The Common Council of Alexandria, II Wheat. Rep. 320, 6 Cond. Rep.3'2S. The testimony in the present case, does not, in direct terms, (as has been justly stated at the bar,) establish the general usage of the West India trade. The witnesses do not, generally, speak to a usage, eo nomine. But it cannot be denied, 447 546 SUPREME COURT. [Columbian Insurance Company v. Catlelt.] that its scope and object are to establish the usage by an enumeration of facts, and voyages, by persons experienced in the trade, and referring to their own knowledge and general information. It thus conduces, indirectly, to prove the usage; and as it is altogether one way, it is certainly such that a jury might infer a usage from it. And if so, this court may infer it. We consider it, then, as a fair deduc- tion from this testimony, that considerable delays in port in the West India trade are not uncommon, for the purpose of taking the advan- tages of the market, and that sales by, retail are within the usage. There are no facts from which -this court can infer, that the delay in the present case was unreasonable or unusual : and, consequently, we cannot admit, tha.t the delay amoiinted to a deviation. The case of Oliver v. The Maryland Insurance Company, 7 Crunch's Rep. 487,-2 Cond. Rep. 580, is in no respect inconsistent with this doc- trine. One question in that case was, whether the delay at Barce- lona, for the purpose of taking in a return cargo, was a deviation. *'i471 *'^^^ court below instructed the jury, that it was not, if the J vessel did not remain longer in that port than the usage and custom of trade at that place rendered necessary to complete her cargo. This court was of opinion, that the instruction was, in substance, cor- rect. The only difficulty which arose was from the terms of the in- struction, which seemed to limit the right, not to the time necessary to take in the cargo, but to a particular period, regulated by the usage of trade. The chief justice there said, " there is some doubt spread over the opinion in this case, in consequence of the terms in which it is ex- pressed. The vessel might certainly remain as long as was necessary to complete her cargo, but it is scarcely to be supposed this was regu- lated by usage and custom. The usages and customs of a port, or of a trade, are peculiar to a port or trade. But the necessity of waiting, where a cargo is to be taken on board, until it can be obtained, is com- mon to all ports, and all trades. The length of time frequently em- ployed in selling one cargo and procuring another, may assist in prov- ing, that a particular vessel has, or has~not, practised unnecessary de- lays in port, but can establish no usage by which the time of remaining in port is fixed. The substantial part of the opinion, however, appears to have been, and seems so to have been understood, that the plaintiflT could not recover, unless the jury should be of opinion, that the vessel did not remain longer at Barcelona than was necessary to complete her cargo, of which necessity the time usually employed for that purpose might be evidence." This case, therefore, recognises the right to wait in port for the purpose of selling one cargo and procuring another ; and the reasoning is employed solely to avoid a criticism founded upon some ambiguity of phrase peculiar to that case. On the other hand, the cases cited at the bar abundantly prove, that the usage and course of trade are very material to determine whether the delay be unreasonable or not. (Salvador v. Hopkins, 3 Burr. 1707. Vallance v. De Mar, 1 Cawpb. Rep. 503. Ongier v. Jennings, 1 Campb. Rep. 505, n ; Phillips's Insur. 182, 183.) The next question is, whether there has been a total loss. And this divides itself into two distinct considerations ; first, whether the facts of the case created a right of abandonment as for a technical total loss ; 448 JANUARY TERM, 1827. 547 [Columbian Insurance Company v. Catlett.J and, secondly, if so, whether there has been a legal abandonment by the assured. Upon the first point there is not much room for difficulty. The in- surance was not for a single passage, but for the round voyage out and home. The cargo, in the course of the outward voyage, and before it was terminated, (for the master had still an election to go to another port after his arrival at Cape Haytien,) was permanently separated ♦from the ship by the total wreck of the latter. It was a perish- r^rAo able cargo, and much injured by the accident, though it does not <- appear to be to the amount of one-half its value; and it was liable to still farther deterioration. There was a necessity, then, for an imme- diate sale at Cape Haytien, and the farther prosecution of the voyage with that ship, or that cargo, became impracticable. It was completely frustrated. Under such circumstances, we are of opinion, that, accord- ing to the established doctrine of the commercial law, it was a clear case of a technical total loss, on account of the breaking up of the voy- age. It is a much stronger case than that of Dorr v. The New England Insurance Company, 4 Mass. Rep. 232, or Hudson v. Harrison, 3 Brod. and Bing. 364, where the court held the losses total. Was there, then, a due and legal abandonment? The letter of aban- donment is admitted to have been sent in due season, and, in its terms, it amounts to a cession of the property. Under ordinary circumstances, it would furnish nothing upon which to suspend a doubt. The difficulty arises from two clauses in the particular form of policy used by this company. One is in the following terms : " in case of loss, the same shall be paid in sixty days after proof and adjustment thereof, without any deduction, except the amount of the premium, if then unpaid." The other is, " it is hereby agreed, that the insured shall not abandon to the insurers until sixty days have elapsed after having given notice to them of his intention so to do, and of the loss or event which may entitle the insured thereto." The suit was not brought until after more than one hundred and twenty days had elapsed from the abandonment made by the letter of the 5th of July. No question, therefore, arises on this head. But the argument is, that the notice of abandonment must, by the terms of the policy, precede the actual abandonment sixty days ; and that, in the present case, either no notice at all of such in- tention has been given, or there has been no actual abandonment at the end of that period. The letter of the 5th of July must either operate as a notice of abandonment, or as actual abandonment ; if the former, then there has been no act of abandonment following up the notice ; if the latter, then it was made too soon, and contrary to the terms of the :3tipulation. Such is the stress of the argument. In construing these clauses, it is material to consider the intention of the parties, as expounded by the general principles of law applicable to the contract. By these principles, the assured, upon an abandonment in due season, for a technical total loss, acquires an immediate right of recovery against the underwriters. He is not bound to wait until they have signified their acceptance or refusal of the abandonment, if it be ♦valid, nor, if accepted, is he bound to wait for payment, but he r^r.Aa may immediately commence an action against them. The object L of the first clause is, in the. case of an undisputed loss, to obtain a delay of payment for sixty days after the adjustment. But, fpom its very Vol. VI. — 57 2n3 449 549 , SUPREME COURT. [Gdlutiihian loeuriinice CompaAy V- Catlett.'j terms, it can only, apply to the case where there has been proof of loss, and also an adjustment. If proof of the loss has been offered, and no adjustment made, as in. case of a disputed loss, thei clause has been sup- posed, in the cases cited at the bar, not to apply. (Vos v. Robinson, 9 Johns. Rep. 192. Alleyne v. Maryland Insurance Company, 6 Harr. and Johns. Rep. 408.) The underwriter is, then, understood to waive the privilege. The true object of the second clause is, to postpone the absolute right of abandonment until sixty days after notice of the loss, so as to enable the underwriters to have time for deliberation upon the acceptance or rejection of it, when made, and to avail themselves of all intermediate events for their benefit. It is wholly unnecessary to con- sider whether the assured, after a notice of abandonment, can retract, if the underwriters choose to insist upon accepting it; or whether, if, instead of a mere notice, he tenders an unequivocal abandonment, which is accepted by the underwriters within the sixty days, he has, nevertheless, a right to withdraw it, if, within the same period, events turn up in his favour. The present case does not present any facts leading to such a question. The clause is manifestly introduced into the policy for the advantage of the underwriters, and not of the as- sured. But there is no necessity for giving any very strict interpreta- tion to it to accomplish the fair objects of its provisions. If Mr. Catlett had written a letter to the company, stating to them, that he thereby gave notice to them of the loss, and his intention to abandon, and had then added therein, that at the termination of the sixty days they were to deem that letter an absolute abandonment, there could scarcely be a doubt that such a letter would have been sufficient to satisfy the re- quirements of the clause. It would give to the underwriters the full benefit of it. If he had written, at the same time, two letters, one con- taining a notice of his intention to abandon, and the other that he made an abandonment, to take effect at the end of the sixty days after the notice, the same legal result would seem to be justified. The clause does not insist upon an abandonment being made in presenti, by an in- strument dated at the expiration of the sixty days ; but only that it shall not,' in point of law, be obligatory as an abandonment until that period. This seems to us a fair and rational exposition of the intention of the clause. In what respect does the letter of the 5th of July differ from the legal results above stated ? It is written with reference to the ^cr«-, known language and stipulations of the policy, and it *must now J be interpreted as it must have been understood, and, indeed, looking to the subsequent proceedings of the company, we may say, as it was understood by both parties. Neither of them seems to have acted upon the supposition, that any other, or more formal act of aban- donment, was necessary. The letter gives notice of an intention to abandon, because, in its terms, it includes an actual abandonment. It has a tacit reference to the clause in the policy, and must be deemed as a notice to abandon, and, at the same time, a declaration that it shall operate as an abandonment in the case, as by law it may. In our judgment, it was a continuing act of abandonment, and became abso- lute at the end of the sixty days. It was an abandonment in presenti, to take effect in futura Neither the form of the notice, nor the aban- donment, is prescribed in the clause. They may be in one or two in- struments ; they Hiay fee ia direct terms, or by fair and natural infer- 450 JANUARY TERM, 1827. 550 [Columbian Insurance Company v, Catlett] ence. It matters not how thoy are given or executed ; it is sufficient, in point of fact, that they have been given or executed. Our opinion accordingly is, that upon the true interpretation of this last clause in the policy, the letter of the 5th of July was a sufficient notice of an intention to abandon, and that, at the expiration of the sixty days, it operated as an actual abandonment. The abandonment, then, having been duly made, the next question that arises is, how the loss is to be apportioned. The argument on behalf of the company is that as part of the cargo was landed at St. Thomas, the amount risked by them is to be diminished by their pro- portion of the cargo so landed. In short, that the loss is now to be made up by them with reference to the value of the whole cargo on board, when the risk first attached, and not with reference to the value on board at the time of the loss, notwithstanding it exceeded the amount insured. We are of a different opinion. We think the true intent and object of the policy was to cover an insurance of ten thousand dollars during the whole voyage out and home, so long as the assured had that amount of property on board. This is not a policy for a voyage to St. Thomas only, in which case the argument miglit justly apply. But it is a policy to two other ports on the outward voyage, and also for the homeward voyage. The language of the policy is, that the under- writers insure ten thousand dollars at and from Alexandria, and two other ports in the West Indies, and back to the United States. The premium is apportioned accordingly, for a half per cent, is to be returned 'f for each port not used or attempted ;" and the contemplation of the parties manifestly is, that the premium should be paid during the round voyage upon the full sum insured, and that the assured should have the full benefit of the insurance, so long as he had ten thousand dollars *on board. The intermediate landing of a portion of the cargo r#irc| in the course of the voyage was wholly immaterial in the under- ■- standing of the parties, so long as the value on board was sufficient to cover the insurance. If the clause, usual in policies in the eastern states, as to priority of insurance, had been here incorporated, and there had been a subsequent insurance, this, as the prior policy, must have first attached to the extent of the sum insured during the whole voyage. If there had been a subsequent insurance without any such clause, it might form a case for contribution among the various underwriters; but would in no shape affect the rights of the assured. The loss, there- fore, must be apportioned between the parties in the proportion which the sum insured bears to the amount of value on board at the time of the loss, that is, as ten thousand dollars bears to twelve thousand three hundred and twenty-eight dollars twenty-five cents. The next question is, whether the freight for the outward voyage is to be deducted from the salvage, and allowed the assured, who was owner of the ship as well as the cargo. The amount reported by the auditor is not disputed, and the controversy is, whether it is a charge upon the salvage in the hands of the underwriters. In point of fact, no freight was or could be payable in this case, for the plain reason, that the assured was owner of the ship, and there could, therefore, be no lien upon the cargo or its proceeds for the same. But in point of law the case is not supposed to be varied by this circumstance ; for if the freight would be a proper charge on the salvage, if a third person 451 551 SUPREME COURT. [Columbian Insurance Company v. Catlett.] were owner of the ship, in the hands of the assured, there is no reason why it should not be allowed when the assured is owner. We consider the law on this point as conclusively settled. As between the owner of the ship and the owner of the cargo, the former has a lien upon the cargo for all the freight which becomes due and payable to him, whether it be a full or pro rata freight. But freight is a charge upon the cargo, against which the underwriters do not, in any event, whether of aban- donment with salvage, or of partial loss, undertake to indemnify the owner of the cargo. In order to obtain the salvage, when in the hands of the ship-owner, it may become necessary for the underwriters to pay the amount of the freight, for which they have a lien, as it may to pay any other charge created by the act of the owner of the cargo. But this does not change the nature or extent of the responsibility of the underwriters. As between themselves and the assured, they have a right to deduct the amount so paid from the loss, or to recover it in any other manner, as money paid for the use of the latter. This doctrine was expressly held by the court of king's bench, in Bail'lie v. Modig- liani, Marshall. Ins. 728, and was confirmed in the fullest manner in ^t-rn-i *this court, in Caze and Richard v. The Baltimore Insurance '■^^ Company,,? Crunch, 358, 2 Cond. Rep. 528. It only remains to notice an objection made to the form of the decla- ration. It is said, that there is no averment in the declaration, that any preliminary proofs of loss were offered to the company, nor of any pro- mise to pay in sixty days after such proofs, according to the terms of the policy, nor that any abandonment, or notice, was given to the un- derwriters. It was, in our judgment, wholly unnecessary to aver the latter facts. The abandonment and notice thereof are but matters of evidence to establish the fact of a total loss, which is expressly averred in the declaration. As to the other part of the objection, it proceeds upon a mistake of the terms of the declaration. There is an express averment, after the allegation of the loss, that the company, on, &c., at, «fcc., had notice thereof, and by means thereof became liable, &c., and in consideration thereof promised, that they would pay the plaintiff the suhi due, " according to the tenor and effect of the said policy of insu- rance." This is a sufficient averment of a promise to pay according to the stipulations of the policy, and conforms to the general course of pre- cedents in pleading. Upon the whole, it is the opinion of this court, that the judgment of the court below, so far as it allowed the freight of two thousand and forty-one dollars and twenty-five cents to the assured, is erroneous, and ought to be reversed ; and that, in all other respects, it ought to be affirmed. Mr, Justice Johnson concurred with the court in all the points decided in this cause, except that which related to freight. After the opinion of the court was delivered in this case, the parties ascertained that the auditor's report was incorrect, (by the disallowance of the freight,) in some other respects, and required a different adjust- ment ; and application was accordingly made for a hearing upon these points. The following additional opinion was subsequently delivered by the court. 452 JANUARY TERM, 1827. 552 [Columbian Insurance Corhpany v. Catlett.] Mr. Justice Story. In consequence of the former opinion delivered in this cause, the parties have found it necessary to readjust the au- ditor's report in several particulars not suggested at the former argument. Indeed, upon that argument, the parties assumed that the report was perfectly correct, except as to the item of freight. We have examined the report, and are satisfied that the original plaintiff is entitled to re- cover the sum of six thousand six hundred and twenty-six dollars and *eighteen cents, with interest from the 14th of October, 1822, r#cco which is the residue of the sum of ten thousand dollars insured '■ by the company, deducting the premium note and the proportion of salvage belonging to the underwriters, which has been received by the original plaintiff; and the judgment of the circuit court is to be re- formed accordingly. Judgment. This cause came on, &c. On consideration whereof, it is ordered and adjudged by the court, that there is error in so much of the judgment as allowed to the said Catlett, as freight to be deducted from the salvage, the sum of two thousand and forty-one dollars and twenty-five cents. And it is further ordered and adjudged, that upon the reformation of the auditor's report, required by the disallowance of the freight aforesaid and otherwise, there is now, due and payable to the said Catlett the sum of six thousand six hundred and twenty- six dollars and eighteen cents, together with interest thereon, from the 14th of October, 1822, the said sum being the balance of the sum of ten thousand dollars insured, after deducting the amount of the pre- mium due on the policy, viz., three hundred and seventy-six dollars, and also the proportion of the salvage belonging to the said Columbian Insurance Company, viz., two thousand nine hundred and ninety-seven dollars and eighty-two cents, received by the said Catlett ; and that the judgment of the circuit court, to the amount of the said sum of six thousand six hundred and twenty-six dollars and eighteen cents, and interest thereon, from the 14th of October, 1822, be and hereby is affirmed; and as to the residue of the said judgment, be and hereby is reversed : and the cause is to be remanded to the said circuit court, with directions to enter judgment for the said Catlett accordingly ; the parties in the court below to be at liberty to open the auditoi-'s report, so far as respects the item for four hundred and eighty dollars, the pro- ceeds of the doubloons, and the item for seven hundred and nineteen dollars and thirty-seven cents, paid over to captain M'Knight ; and the judgment to be varied by the circuit court as these items may be found for either party ; execution, however, to be granted immediately for the balance of the judgment, deducting the said sum of seven hundred and nineteen dollars and thirty-seven cents. Total loss. See notes of cases as to what v ill constitute a total loss, 3 Cond. Kep, 25. Deviation. See notes, 2 Cond. Rep. 299. 453 554 SUPREME COURT. *554] *The General Interest Insurance Company, PlaintifFs in error, v. Ruggles, Defendant in error. 12 Wheaion's Reports, 408. WHERE an insurance was effected after a loss had happened, though unknown to the assured, the master having omitted to communicate information to the owner, and having expressed his intention not to write to the owner, and taken measures to prevent the fact of the loss being known, for the avowed purpose of enabling the owner to effect insurance, in consequence of which inforrtiation of the loss had iiot reached the parties at the time the policy was underwritten : held, that the owner having acted with good faith, was not precluded from a re- covery upon the policy on account of the fraudulent misconduct of the. master. Brown and others, PlaintifFs in error, v. The State of Mary- land, Defendants in error. 12 Wheatori's Reports, 419. An act of a state legislature, requiring all importers of foreign goods by the bale or package, ' &c., and other persons selling the same by wholesale, bale, or package, &c., to take out a license for which they shall pay fifty dollars, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, is repugnant to that pro- vision of the constitution of the United States, which declares that " no state shall, without the consent of congress, lay any impost or duty on imports or exports, except what may be absolutely necessary for executing its inspection laws;" and to that which declares that con- gress shall have power " to regulate commerce with foreign nations, among the several states, and with the Indian tribes." The power to regulate commerce, given to congress by the constitution, is co-extensive with the subject on which it acts ; and cannot be stopped at the external boundary of a state, but _- _, must enter its interior. If the power reaches the interior of a state, and *inay be "''•'J there exercised, it must be capable of authorizing the sale of those articles it intro- duces. Commerce is intercourse : one of its most ordinary ingredients is traiBc. It is in- conceivable, that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy shall be complete, should cease at the point, when its continuance is indispensable to its value; To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing im- ported. Sale is the object of importation, and it is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, as the importation itself. It must be considered as a com- ponent part of the power to regulate commerce. Congress has not only a right to authorize importation, but to authorize the importer to sell. ERROR to the court of appeals of Maryland. This was an indictment in the city court of Baltimore, against the 454 JANUARY TERM, 1827. 555 [Brown v. The State of Maryland.] plaintiffs in error, upon the second section of an act of the legislature of the state of Maryland, passed in 1821, entitled, "an act supplementary to the act laying duties on licenses to retailers of dry goods, and for other purposes." The second section of the act provides, " that all im- porters of foreign articles, or commodities, of dry goods, wares, or mer- chandises, by bail or package, or of wine, rum, brandy, whiskey, and other distilled spirituous liquors, &c., and other persons selling the same by wholesale, bale, or package, hogshead, barrel, or tierce, shall, before they are authorized to sell, take out a license as by the original act is directed, for which they shall pay fifty dollars ; and in case of neglect or refusal to take out such license, shall be subject to the same penalties and forfeitures as are prescribed by the original act, to which this is a supplement." The penalties and forfeitures prescribed by the original act, which was passed in 1819, were a forfeiture of the amount of the license tax, and a fine of one hundred dollars, to be recovered by indictment. The defendants having demurred to the indictment, a judgment was rendered upon the demurrer against them, in the city court, which was affirmed in the court of appeals, and the case was brought, by writ of error, to this court. Mr. Meredith and Mr. Wirt, attorney-general, for the plaintiffs in error, cited : The Concord, 9 Cranch, 388, 3 Corid. Rep. 438. See also 4 Cranch, 347, 2 Concl. Rep. 147. Hale on the Customs, part 3, ch. 20, in Hargr. Law Tracts, 211. Hanson's Laws of Maryland, act of 1783, ch. 36, s. 34. Act of 1784, ch. 84, s. 5. 1 Mason's Rep. 482. M'CuUoch V. Maryland, 4 Wheat. Rep. 316, 4 Cond. Rep. 466. Gib- bons V. Ogden, 9 Wheat. Rep. 1, 5 Cond. Rep. 562. The Federalist, Nos. 11, 12. Mr. Taney and Mr. Johnson, contra, cited : Act of March 2, 1799 ch. 128. 1 Mason's Rep. 499. 4 Wheat. Rep. 246, 4 Cond. Rep. 444 *Mr. Chief Justice Marshall delivered the opinion of the r^ceo court. L This is a writ of error to a judgment rendered in the court of appeals of Maryland, affirming a judgment of the city court of Baltimore, on an indictment found in that court against the plaintiffs in error, for violat- ing an act of the legislature of Maryland. The indictment was founded on the second section of that act, which is in these words : " and be it enacted, that all importers of foreign articles or commodities, of dry goods, wares, or merchandise, by bale or package, or of wine, rum, brandy, whiskey, and other distilled spirituous liquors, &c., and other persons selling the same by wholesale, bale or package, hogshead, bar- rel, or tierce, shall, before they are authorized to sell, take out a license, as by the original act is directed, for which they shall pay fifty dollars; and in case of neglect or refusal to take out such license, shall be sub- ject to the same penalties and forfeitures as are prescribed by the origi- nal act to which this is a supplement." The indictment charges the plaintiffs in error with having imported and sold one package of foreign dry goods without having license to do so. A judgment was rendered against them on demurrer for the penalty which the act prescribes for the offence ; and that judgment is now before this court. The cause depends entirely on the question, whether the legislature 455 556 SUPREME COURT. [Brown v. The State of Maryland.] of a state can constitutionally require the importer of foreign articles to take out a license from the state, before he shall be permitted to sell a bale or package so imported. It has been truly said, that the presumption is in favour of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality. The plaintiffs in error take the burden upon themselves, and insist that the act under consideration is repug- nant to two provisions in the constitution of the United States. 1. To that which declares that " no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws:" 2. To that which declares that congress shall have power " to regu- late commerce with foreign nations, and among the several states, and with the Indian tribes." 1. The first inquiry is into the extent of the prohibition upon states " to lay any imposts or duties on imports or exports." The counsel for the state of Maryland would confine this prohibition to laws imposing duties on the act of importation or exportation. The counsel for the plaintifis in error give them a much wider scope. In performing the delicate and important duty of construing clauses in the constitution of our country, which involve conflicting powers of the government of the union, and of the respective states, it is proper ^f-E-r, *to take a view of the literal meaning of the words to be ex- J pounded, of their connection with other words, and of the gene- ral objects to be accomplished by the prohibitory clause, or by the grant of power. What, then, is the meaning of the words, " imposts or duties on im- ports or exports 1" An impost or duty on imports is a custom or tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them, because eva- sions of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less an im- post or duty on the articles, if it were to be levied on them after they were landed. The policy and consequent practice of levying or secur- ing the duty before, or on entering the port, does not limit the power to that state of things, nor, consequently, the prohibition, unless the true meaning of the clause so confines it. What, then, are " imports 1" The lexicons inform us, they are " things imported." If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country. "A duty on imports," then, is not merely a duty on the act of importa- tion, but is a duty on the thing imported. It is not, taken in its literal sense, confined to a duty levied while the article is entering the country, but extends to a duty levied after it has entered the country. The succeeding words of the sentence which limit the prohibition, show the extent in which it was understood. The limitation is, " except what may be absolutely necessary for executing its inspection laws." Now, the inspection laws, so far as they act upon articles for exportation, are generally executed on land, before the article is put on board the vessel ; so far as they act upon importations, they are generally executed upon articles which are landed. The tax or duty of inspection, then, is a 456 JANUARY TERM, 1827. ' 557 [Brown v. The State of Maryland.] tax which is frequently, if not always, paid for service performed on land, while the article is in the bosom of the country. Yet this tax is an exception to the prohibition on the states to lay duties on imports or exports. The exception was made because the tax would otherwise have been within the prohibition. ■ If it be a rule of interpretation to which all assent, that the exception of a particular thing from general words ■ proves that, in the opinion of* the lawgiver, the thing excepted would be within the general clause had the exception not been made, we know no reason why this general rule should not be as applicable to the constitution as to other instru- ments. If it be applicable, then this exception in favour of duties for the support of inspection laws goes far in proving that the framers of the constitution classed taxes of a similar character with those imposed *for the purpose of inspection, with duties on imports and ex- r^cco ports, and supposed them to be prohibited. ■- If we quit this narrow view of the subject, and, passing from the literal interpretation of the vvords, look to the objects of the prohibi- tion, we find no reason for withdrawing the act under consideration from its operation. From the vast inequality between the different states of the confede- racy as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several states exercised, or seemed disposed to exercise, the power of laying duties on imports. From motives which were deemed sufficient by the statesmen of that day, the general power of taxation, indispen- sably necessary as it was, and jealous as the states were of any en- croachment on it, was so far abridged as to forbid them to touch im- ports or exports, with the single exception which has been noticed. Why are they restrained from imposing these duties? Plainly be- cause, in the general opinion, the interest of all would be best promoted by placing that whole subject under the control of congress. Whether the prohibition to " lay imposts or duties on imports or exports," pro- ceeded from an apprehension that the power might be so exercised as to disturb that equality among the states which was generally advanta- geous, or that harmony between them which it was desirable to preserve, or to maintain unimpaired our commercial connections with foreign nations, or to confer this source of revenue on the government of the union, or whatever other motive might have induced the prohibition, it is plain that the object would be as completely defeated by a power to lax the article in the hands of the importer the instant it was landed, as by a power to tax it while entering the port. There is no differ- ence, in effect, between a power to prohibit* the sale of an article, and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods would be imported if none could be sold. No object of any description can be accomplished by laying a duty on importation, which may not be accomplished with equal certainty by laying a duty on the thing imported in the hands of the importer. It is obvious that the same power which imposes a light duty, can impose a very heavy one — one which amounts to a prohibi- tion. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it, must be exercised at the will of those in whose hands it is placed. If the tax may VoL.VI.-58 20 457 558 SUPREME COURT. [Brovsrn v. The State of Maryland.] be levied in this form by a state, it may be levied to an extent which will defeat the revenue by impost, so far as it is drawn from importa- tions into the particular state. We are told that such wild apd irra- ^rcQ-i tional *abuse of power is not to be apprehended, and is 'hot ta -* be taken into view when discussing its existence. All power may be abused ; and if the fear of its abuse is to constitute an argu- ment against its existence, it might be urged against the existence of that which is universally acknowledged, and which is indispensable to the general safety. The states will never be so mad as to destroy their own commerce, or even to lessen it. We do not dissent from these general propositions. We do not sup- pose any state would act so unwisely. But we do not place the ques- tion on that ground. These arguments apply with precisely the same force against the whole prohibition. It might, with the same reason, be said, that no state would be so blind to its own interests as to lay duties on importa- tion which would either prohibit or diminish its trade. Yet the framers of our constitution have thought this a poWer which no state ought to exercise. Conceding, to the full extent which is required, that every state would, in its legislation on this subject, provide judiciously for its own interests, it cannot be conceded, that each would respect the in terests of others. A duty on imports is a tax on the article which is paid by the consumer. The great importing states would thus levy a tax on the non-importing states, which would not be less a tax because their interest would afford ample security against its ever being so heavy as to expel commerce from their ports. This would necessarily produce countervailing measures on the part of those states whose situation was less favourable to importation. For this, among other reasons, the whole power of laying duties on imports was, with a single and slight exception, taken from the states. When we are inquiring whether a particular act is within this prohibition, the question is not Wvhether the state may so legislate as to hurt itself, but whether the act is within the words and mischief of the prohibitory clause. It has already been shown, that a tax on the article in the hands of the im- porter, is within its words ; and we think it too clear for controversy, that the same tax is within its , mischief. We think it unquestionable, that such a tax has precisely the same tendency to enhance the price of the article, as if imposed upon it while entering the port. The counsel for the state of Maryland insist, with great reason, that if the words of the prohibition be taken in their utmost latitude, they will abridge the power of taxation, which all admit to be essential to the states, to an extent which has "never yet been suspected, and will deprive them of resources which are necessary to supply revenue, and which they have heretofore been admitted to possess. These words must, therefore, be construed with some limitation; and, if this be ad- *'ifi01 "1'**^^' *they insist, that entering the country is tbe point of J time when the prohibition ceases, and the power of the state to tax commences. It may be conceded, that the wiards of the prohibition ought not to • be pressed to their utmost extent ; that in our complex system, the ob- ject of the powers conferred on the government of the union, and the nature of the often conflicting powers which remain in the states, must 4.58 JANUARY TERM, 1827. 560 [Brown v. The State of Maryland.] always be taken into view, and may aid in expounding the words of any particular clause. But, while we admit that sound principles of construction ought to restrain all courts from carrying the words of the prohibition beyond the object the constitution is intended to secure ; that there must be a point of time when the prohibition ceases, and the power of the state to tax commences; we cannot admit that this point of time is the instant that the articles enter the country. It is, we think, obvious, that this construction would defeat the prohibition. The constitutional prohibition on the states to lay a duty on imports, a prohibition which a vast majority of them must feel an interest in preserving, may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable when they do not approach each other, may yet, like the intervening colours between white and black, approach so nearly as to perplex the understanding, as colours perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as the cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present to say, ge- nerally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of pro- perty in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state ; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in thie constitution. The counsel for the plaintiffs in error contend, that the importer purchases, by payment of the duty to the United States, a right to dis- pose of his merchandise, as well as to bring it into the country ; and certainly the argument is supported by strong reason, as well as by the practice of nations, including our own. The object of importation is sale ; it constitutes the motive for paying the duties ; and if the United Stales possess the power of conferring the right to sell, as the consid- eration for which the duty is paid, every principle of fair dealing requires that they should be understood to confer it. The practice of the most commercial nations conforms to this idea. Duties, according to that *practice, are charged on those articles only which are intended r^cei for sale or consumption in the country. Thus, sea stores, goods L imported and re-exported in the same vessel, goods la,nded and carried overland for the purpose of being re-exported from some other port, goods forced in by stress of weatlier, and landed, but not for sale, are exempted from the payment of duties. The whole course of legislation on the subject shows, that, in the opinion of the legislature, the right to sell is connected with the payment of duties. The counsel for the defendant in error have endeavoured to illustrate their proposition, that the constitutional prohibition ceases the instant the goods enter the country, by an array of the consequences which they suppose must follow the denial of it. If the importer acquires the right to sell by the payment of duties, he may, they say, exert that right, when, where, and as he pleases, and the state cannot regulate it. He may sell by retail, at auction, or as an itinerant pedlar. He may introduce articles, as gunpowder, which endanger a city, into the midst 459 561 SUPREME- COURT. [Brown v. The State of Maryland.] of its population ; lie may introduce articles which endanger the public health, and the power of self-preservation is denied. An importer may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation. These objections to the principle, if well founded, would certainly be entitled to serious consideration. But, we think, they will be found, on examination, not to belong necessarily to the principle, and, conse- quently, not to prove, that it may not be resorted to with safety as a criterion by which to measure the extent of the prohibition. This indictment is against the importer, for selling a package of dry goods in the form in which it was imported, without a license. This state of things is changed if he sells them, or otherwise mixes them with the general property of the state, by breaking up his packages, and travelling with them as an itinerant pedlar. In the first case, the tax intercepts the import, as an import, in its way to become incor- porated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the state. It denies to the importer the right of using the privilege which he has purchased from the United States, until he shall have also purchased it from the state. In the last cases, the tax finds the article alrea/ly incorporated with the mass of property by the act of the importer. He has used the privilege he had purchased, and has himself mixed them up with the common mass, and the law may treat them as it finds them. The same observations apply to plate, or other furniture used by the importer. *'ifi21 *^''' ^^ ^^ ^^''* y^ auction. Auctioneers are persons licensed -■ by the state, and if the importer chooses to employ them, he can as little object to paying for this service, as for any other for which he may apply to an officer of the state. The right of sale may very well be annexed to importation, without annexing to it, also, the privilege of using the officers licensed by the state to make sales in a peculiar way. The power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains, and ought to remain, with the states. If the possessor stores it himself out of town, the removal cannot be a duty on imports, because it contributes nothing to the revenue. If he prefers placing it in a public magazine, it is be- cause he stores it there, in his own opinion, more advantageously than elsewhere. We are not sure that this may not be classed among in- spection laws. The removal or destruction of infectious or unsound articles is, undoubtedly, an exercise of that power, and forms an ex- press exception to the prohibition we are considering. Indeed, the laws of the United States expressly sanction the health laws of a state. The principle, then, for which the plaintiffs in error contend, that the importer acquires a right, not only to bring the articles into the country, but to mix them with the common mass of property, does not interfere with the necessary power of taxation which is acknowledged to resjde in the states, to that dangerous extent which the counsel for the defendants in error seem to apprehend. It carries the prohibition m the constitution no farther than to prevent the states from doing that ^vhich it was the great object of the constitution to prevent. But if it should be proved, that a duty on the article itself would be 460 JANUARY TERM, 1827. SSQ [Brown v. The State of Maryland.] repugnant to the constitution, it is still argued, that this is not a tax upon the article, but on the person. The state, it is said, may tax occu- pations, and this is nothing more. It is impossible to conceal from ourselves, that this is varying the form, without varying the substance. It is treating a prohibition which is general, as if it were confined to a particular mode of doing the for- bidden thing. All must perceive, that a tax on the sale of an article, imported only for sale, is a tax on the article itself. It is true, the state may tax occupations generally, but this tax must be paid by those who employ the individual, or is a tax on his business. The lawyer, the physician, or the mechanic, must either charge more on the article in which he deals, or the thing itself is taxed through his person. This the state has a right to do, because no constitutional prohibition extends to it. So, a tax on the occupation of an importer is, in like manner, a tax on importation. It must add to the price of the article, and be paid by the consumer, or by the importer himself, in-like manner as a direct *duty on the article itself would be made. This the state has r.,=oq not a right to do, because it is prohibited by the constitution. L In support of the argument, that the prohibition ceases the instant the goods are brought into the country, a comparison has been drawn between the opposite words export' and import. As, to export, it is said, means only to carry goods out of the country ; so, to import, means only to bring them into it. But, suppose we extend this comparison to the two prohibitions. The states are forbidden to lay a duty on ex- ports, and the United States are forbidden to lay a fax or duty on articles exported from any state. There is some diversity in language, but none is perceivable in the act which is prohibited. The United States have the same right to tax occupations which is possessed by the states. Now, suppose the United States should require every exporter to take out a license, for which he should pay such tax as congress might think proper to impose; would government be permitted to shield itself from the just censure to which this attempt to evade the prohibi- tions of the constitution would expose it, by saying, that this was a tax on the person, not on the article, and that the legislature had a right to tax occupations ? Or, suppose revenue cutters were to be stationed off the coast for the purpose of levying a duty on all merchandise found in vessels which were leaving the United States for foreign countries ; would it be received as an excuse for this outrage, were the govern- ment to say that exportation meant no more than carrying goods out of the country, and as the prohibition to lay a tax on imports, or things imported, ceased the instant they were brought into the country, so the prohibition to tax articles exported ceased when they were carried out of the country ? We think, then, that the act under which the plaintiffs in error were indicted, is repugnant to that article of the constitution which declares, that "no state shall lay any impost or duties on imports or exports." 2. It is also repugnant to that clause in the constitution which im- powors "congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The" oppressed and degraded state of commerce previous to the adop- tion of the constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests ; and our dis- 2o2 461 563 SUPREME COURT. [Brown V. The State of Maryland.] united efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the powci- of making treaties ; but the inability of the federal government to enforce them bad become so apparent as to render that power in a great degree Useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce *'ifi41 °" ^^^ *prosperity of nations, perceived the necessity of giving'' J the control over this important subject to a single government. It may be doubted whether any of the evils proceeding from the feeble- ness of the federal government, contributed more to that great revolu- tion which introduced the present system, than the deep and general conviction, that commerce ought to be regulated by congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the states. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity. What, then, is the just extent of a power to regulate commerce with foreign nations, and among the several states 1 This question was considered in the case of Gibbons v. Ogden, 9 Wheat. Rep. 1, 5 Cond. Rep. 562, in which it was declared to be complete in~ itself, and to acknowledge no limitations other than are prescribed by the constitution. The power is co-extensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, but must enter its interior. We deem it necessary now to reason in support of these propositions. Their truth is proved by facts continually before our eyes, and was, we think, demonstrated, if they could require demonstration, in the case already mentioned. If this power reaches the interior of a state, and may be there exer- cised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse : one of its most ordinary in- gredients is traffic. It is inconceivable, that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of im- portation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as in- dispensable to the existence of the, entire thing, then, as importation itself. It must be considered as a component part of the power to re- gulate commerce. Congress has a right, not only to authorize importa- tion, but to authorize the importer to sell. If this be admitted, and we think it cannot be denied, what can be the meaning of an act of congress which authorizes importation, and oflfers the privilege for sale at a fixed price to every person who chooses ♦"ifWI **^ become a purchaser ? How is it to be construed, if an in- J tent to deal honestly and fairly, an intent as wise as it is moral, is to enter into the construction ? What can be the use of the con- 462 JANUARY TERM, 1827. 565 [Brovrn v. The State of Maryland.] tracts what does the importer purchase, if he does not purchase the privilege to sell ? What would be the language of a foreign government, which should be informed that its merchants, after importing according to law, were forbidden to sell the merchandise imported 1 What answer Avollld the United States give to the complaints and just reproaches to which such an extraordinary circumstance would expose them ? No apology could be received, or even offered. Such a state of things would break up commerce. It will not meet this argument, to say, that this state of things will never be produced; that the good sense of the states is a sufficient security against it. The constitution has not confided this subject to that good sense. It is placed elsewhere. The question is, where does the power reside ? not, how far will it be probably abused ? The power claimed by the state is, in its nature, in conflict with that given to congress ; and the greater or less extent in which it may be exercised does not enter. into the inquiry concerning its existence. We think, then, that if the power to authorize a sale exists in con- gress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable. If the principles we have stated be correct, the result to which they conduct us cannot be mistaken. Any penalty inflicted on the importer for selling the article in his character of importer, must be in opposition to the act of congress which authorizes importation. Any charge on the introduction and incorporation of the articles into and with the mass of property in the country, must be hostile to the power giyen to congress to regulate commerce, since an essential part of that regula- tion, and principal object of it, is to prescribe the regular means for accomplishing that introduction and incorporation. i The distinction between a tax on the thing imported, a!nd on the per- son of the importer, can have no influence on this part of the subject. It is too obvious for controversy, that they interfere equally with the power to regulate commerce. It has been contended, that this construction of the power to regu- late commerce, as was contended in construing the prohibition to lay duties on imports, would abridge the acknowledged power of a state to tax its own citizens, or their property within its territory. We admit this power to be sacred ; but cannot admit that it may be used so as to obstruct the free course of a power given to congress. We cannot admit, that it may be used so as to obstruct or defeat the power to regulate commerce. It has been observed, that the powers remaining *with the states may be so exercised as to come in conflict with r^coj. those vested in congress.' When this happens, that which is not L supreme must yield to that which is supreme. This great and univer- sal truth is insepara.ble from the nature of things, and the constitution has applied it to the often interfering powers of the general and state governments, as a vital principle of perpetual operation. It results'" necessarily, from this principle, that the taxing power of the states must have some limits. • It cannot reach and restrain the action of the national government within its proper sphere. It cannot reach the administration of justice in the courts of the union, or the collection of the taxes of the United States, or restrain the operation of a,ny law which congress may constitutionally pass. It cannot interfere with 463 566 SUPREME COURT. [Brown v. The State of Maryland.] any regulation of commerce. If the states may tax all persons and property found on their territory, what shall restrain them from taxing goods in their transit through the state from one port to another, for the purpose of re-exportation t The laws of trade authorize this opera- tion, ^nd general convenience requires it. Or what should restrain a state from taxing any article passing through it from one state to another, for the purpose of traffic? or from taxing the transportation of articles passing from the state itself to another state, for commercial purposes I These cases are all within the sovereign power of taxation, but would obviously derange the measures of congress to regulate com- merce, and affect materially the purpose for which that power was given. We deem it unnecessary to press this argument farther, or to give additional illustrations of it, because the subject was taken up and considered with great attention in M'Culloch v. The State of Maryland, 4 Wheat. Rep. 316, 4 Cond. Rep. 466, the decision in which case is, we think, entirely applicable to this. It may be proper to add, that we suppose the principles laid down in this case, to apply equally to importations from a sister state. We do not mean to give any opinion on a tax discriminating between foreign and domestic articles. We think there is error in the judgment of the court of appeals of the state of Maryland, in affirming the judgment of the Baltimore city court, because the act of the legislature of Maryland, imposing the penalty for which the said judgment is rendered, is repugnant to the constitution of the United States, and, consequently, void. The judg- ment is to be reversed, and the cause remanded to that court, with instructions to enter judgment in favour of the appellants. Judgment. This cause came on, &c. On consideration whereof, this court is of opinion, that there is error in the judgment rendered by the said court of appeals in this, that the judgment of the city court of *'ifi7n *Baltimore, condemning the said Alexander Brown, George J Brown, John A. Brown, and James Brown, to pay the penalty therein mentioned, ought not to have been so rendered against them, because the act of the legislature of the state of Maryland, entitled " an act supplementary to the act laying duties on licenses to the re- tailers of dry goods, and for other purposes," on which the indictment on which the said judgment was rendered is founded, so far as it enacts " that all importers of foreign articles of dry goods, wares, or merchan- dise, by bale or package, or of wine, rum, brandy, whiskey, or other distilled spirituous liquors, &c., selling the same by wholesale, bale or package, hogshead, barrel, or tierce, shall, before they are authorized to sell, take out a license as by the original act is directed, for which they shall pay fifty dollars ; and in case of neglect or refusal to take out such license, shall be subject to the same penalties and forfeitures as are prescribed by the original act to which this is a supplement," is repugnant to the constitution of the United States, and void ; where- fore the said court of appeals, before whom the said judgment of the said city court of Baltimore was brought by appeal, ought not to have affirmed, but should have reversed the same. Wherefore it is consi- Jered by this court that the said judgment of the said court of appeals, affirming the said judgment of the city court of Baltimore, be reversed 464 JANUARY TERM, 1827. 567 [Brown V. The State of Maryland.] and annulled, and that the cause be remanded to the said court of ap- peals, with directions to reverse the same. Constitutianality of state laws. See notes, 2 Cond. Rep. 325. The following cases have been decided since the publication of the reports of Mr. Wheaton : The act of the assembly of the state of Delaware, by which the construction of the dam" erected by the plaintiffs was authorized, shows plainly that this is one of those many creeks passing through a deep level marsh, adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come in collision with the powers of the general government, are undoubtedly within those which are reserved to the states. The measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the constitution, or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognisance. Willson v. The Black Bird Creek Marsh Company, 2 Peters, 251. If congress had passed any act in execution of the power to regulate commerce, the object of which was to control state legislation over these small navigable creeks, into which the tide ebbs ^nd flows, and which abound throughout the lower country of the middle and southern states, the court would feel not much difficulty in saying that a state law, coming in conflict with such act, would be void. But congress has passed no such act. The repugnancy of the law of Delaware is placed entirely on its repugnancy *to the law to regulate commerce ritcf;Q with foreign nations) and among the several states ; a power which has not been so L *'09 exercised as to affect this question. Rid. S. and M. held land in Luzerne county, Pennsylvania, in common under a Connecticut title. A division of the land was made between them, and S. became the tenant of M. of his part of the land thus set off in severalty, under a lease, to be terminated on a notice of one year. 8. afterwards obtained a Pennsylvania title to the land leased to him by M., and on a trial in an ejectment for the land, brought by M. against S., the court of common pleas of Bradford county, Pennsylvania, held that S. having held the land as tenant of M., could not set up a title against his landlord, Upbn a writ of error to the supreme court of Pennsylvania in 1825, it was held that "the relation between landlord and tenant could not exist between persons holding under a Connecticut title." The legislature of Pennsylvania, on the 8th of April, 1826, passed an act declaring that " the relation of landlord and tenant should exist and he held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between citizens of the commonwealth." The case came again before the supreme court of Pennsylvania, and the judgment of the court of common pleas of Bradford county in favour of M. the landlord, was affirmed ; that court having decided that the act of assembly of the 8th of April, 1826, was a constitutional act, and did not impair the validity of any contract. 8. brought a writ of error to this court, claiming that the act of the assembly of Pennsylvania of the 8th of April, 1 826, was unconstitutional. Held, that the act was constitutional. Satterlee V. Malthewson, 2 Peters, 380. In the case of Fletcher v. Peck, 6 Cranch, 87, 2 Cond. Rep. 308, it was stated by the chief justice that it might well be doubted whether the nature of society and of government do not prescribe some limits to the legislative power, and he asks, " if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation V It is nowhere intimated in that opinion that a state statute, which devests a vested right, is repugnant to the constitution of the United States. Ibid. A tax imposed by a law of any state of the United States, or under the authority of such a law, on stock issued for loans made to the United States, is unconstitutional. Weston et al. v. The City Council of Charleston, 2 Peters, 449. It is not the want of original power in an independent sovereign state to prohibit loans to a foreign government, which restrains the state legislatures from, direct opposition to those made by the United States. The restraint is imposed by our constitution. The American people have conferred the power of borrowing money on the government, and, by making that govern- ment supreme, have shielded its action, in the exercise of that power, from the action of the local governments. The grant of the power, and the declaration of supremacy, are a declara- tion that no such restraining or controlling power shall be exercised. Ibid. The lands of an intestate descend not to the administrator, but to the heir ; they vest in him, 'liable to the debts of his ancestor, and subject to be sold for those debts. The administrator Vol. VI.— 59 465 568 SUPREME COURT. [Brown v. The State of Maryland.] has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opi- nion may. require it ; but it is conferred by the court, in a state of things prescribed by the law. The order of the court is a prerequisite, indispensable to the very existence of the power ; and if the law which authorizes the court to make the order, be repealed, the power to sell can never come into existence. The repeal of such a law devests no vested estate, but it is the exercise of a legislative power, which evfery legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature. The Bank of Harmlton v. Dudley's heirs, 3 Peters, 523. J. J. died in New Hampshire, seised of real estate in Rhode Island, having devised *'ifiQ1 *'*'* ^^""^ '" *"'' daughter, an infant. His executrix proved the will in New Hamp- ' •'""J shire, and obtained a license from a probate court, in that state, to sell the real estate of the testator for the payment of debts. She sold the real estate in Rhode Island for that pur- pose, and conveyed the same by deed ; giving a bond to procure a confirmation of the convey- ance by the legislature of Rhode Island. The proceeds of the sale were appropriated to pay the debts of the intestate. Held, that the act of the legislature of Rhode Island, which con- firmed the title of the purchasers, was valid. VRlldnson v. Leland et al., 8 Peters, 657. That government can scarcely be deemed to be free, where the rights of property are left solely dependent on the will of the legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property, should be held sacred. At least, no court of justice in this country would be justified in assuming, that the power to violate or disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of such an intention. Ibid. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent granted by the state of New York to John Cornelius. He insisted that the patent created a contract between the state and the patentee, his heirs and assigns, that they should enjoy the land free from any legislative regulations to be made in violation of the con- stitution of the state, and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract. Under that act commissioners were appointed to investigate the contending titles to all lands held under such patents as that granted to John Cornelius, and by their proceedings, without the aid of a juiy, the title of the defendants in error was established against, and defeating the title under a deed made by John Cornelius, the patentee, and which deed was executed under the patent. This is not a case within the clause of the constitution of the United States, which prohibits a state from passing laws which shall impair the obligation of contracts. The only contract made by the state is a grant to John Cornelius, his heirs and assigns, of the land. The patent contains no covenant to do or not to do any further act in relation to the land ; and the court are not inclined to create a contract by impli- cation. The act of the legislature of New York docs not attempt to take land from the patentee ; the grant remains in full efifect ; and the proceedings of the commissioners under the law operated upon titles derived under, and not adversely to, the patent. Hart v. Lamphire, 3 Peters, 289. It is within the undoubted powers of state legislatures, to pass recording acts, by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within a limited lime ; and the power is the same, whether the deed is dated before or after the recording act. Though the effect of such a deed is to render the prior deed fraudulent and void against a sub- sequent purchaser, it is not a law violating the obligation of contracts. So too is the power to pass limitation laws. Reasons of sound policy have led to the general adoption of laws of this description, and their validity cannot be questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will gene- rally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur, where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of this court. Ibid. To bring a case within the protection of the seventh article in the compact between Virginia __,„-, and Kentucky, it must be shown that the title to the land asserted is derived *lTom ''''^J the laws of Virginia, prior to the separation of the two states. Lessor of Fisher v. Cockerell, 6 Peters, 248. In its enlarged, and perhaps literal sense, the term " bill of credit" in the constitution, may comprehend any instrument by which a state engages to pay money at a future day : thus in eluding a certificate given for money borrowed. But the language of the constitution itself, 466 JANUARY TERM, 1827. 570 [Brown v. The State of Maryland.] and the mischief to be prevented, equally limit the interpretation of the terms. The word " emit" is never employed in describing those contracts by which a state binds itself to pay money at a future day for services actually received, or for money borrowed for present use. Nor are instruments executed for such purposes, in common language, denominated « bills of •credit." « To emit bills of credit," conveys to the mind the idea of issuing paper intended to circulate through the community, for its ordinary purposes, as money ; which paper is redeem- able at a future day. This is the sense in which the terms have always been understood. Craig v. The State of Missouri, 4 Peters, 431. The constitution considers the emission of bills of credit, and the enactment of tender laws, as distinct operations ; independent of each other ; vrhich may be separately performed. Both aro forbidden. To sustain the one, because it is not also the other ; to say that bills of credit may be emitted, if they be not made a tender in payment of debts ; is, in effect, to expunge that distinct independent prohibition, and to read the clause as if it had been entirely omitted. Hid. On the 27th day of June, 1821, the legislature of the state of Missouri passed an act, en- titled " an act for the establishment of loan offices ;" by the third section of which, the officers of the treasury of the state, under the direction of the governor, were required to issue certifi- cates to the amount of two hundred thousand dollars, of deilominations not exceeding ten dol- lars,, nor less than fifty cents, in the following form: "this certificate shall be receivable at the treasury of any of the loan offices in the state of Missouri, in discharge of taxes or debts due to the state, for the sum of dollars, with interest for the same, at the rate of two per centum per annum from this date." These certificates were to be receivable at the treasury, and by tax-gatherers and other public officers, in payment of taxes, or moneys due or to be- come due to the state, or to any town or county therein, and by all officers, civil and military, in the state, in discharge of salaries and fees of office ; and in payment for salt made at the salt springs owned by the state, and to be afterwards leased by the authority of the legislature. The twenty-third section of the act pledges certain property of the state for the redemption of these certificates ; and the law authorizes the governor to negotiate a loan of silver or gold for the same purpose. A provision is made in the law for the gradual withdrawal of the certifi- cates from circulation ; and all the certificates have since been redeemed. The commissioners of the loan offices were authorized to make loans of the certificates to citizens of the state, as- signing to each district a proportion of the amount of the certificates, to be secured by mort- gage or personal security; the loans to bear interest not exceeding six per cent, per annum, and the loans on personal property to be for less than two hundred dollars. Held, that the certifi- cates issued under the authority of the law of Missouri were " bills of credit ;" and that their emission was prohibited by the constitution of the United States, which declares that no state shall " emit bills of credit." Ibid. A promissory note given for certificates issued at the loan office of Chariton in Missouri, payable to the state of Missouri, under the act of the legislature " establishing loan offices," is void. Ibid. The action was assumpsit on a promissory note, and the record stated, " that neither party having required a jury, the cause was submitted to tbe court ; and the court having seen and heard the evidence, the court found that the defendants did assume as the plaintiff had declared ; that the consideration for the note and the assumpsit was for loan office certificates, loaned by the state of Missouri at her loan office in Chariton, vfhich certificates *were issued r%riyi under >' an act for establishing loan offices, &c." Held, that it could not be doubted 1 ^'^ ^ that the declaration is on a note given in pursuance of the act of Missouri : and that under the plea of non assumpsit, the defendants were at liberty to quesition the validity of the considera- tion which was the foundation of the contract, and the constitutionality of the law in which it originated. The record thus exhibiting the case, gives jurisdiction to this court over the case, on a writ of error prosecuted by the defendants to this court from the supreme court of Mis- souri, under the provisions of the twenty-fifth section of the judiciary act of 1789. Ibid. Every thing which disaffirms the contract ; every thing which shows it to be void ; may be given in evidence on the general issue, in an action of assumpsit. Ibid. In 1791 the legislature of*Ehode Island granted a charter of incorporation to certain indi- viduals who had associated for the purpose of banking. They were incorporated by the name of the president, directors, and company of the Providence Bank, with the ordinary powers of such associations. In 1822 the legislature passed an act imposing a tax on every bank in the state, except the Bank of the United Stales. The Providence Bank refused the payment of the tax, alleging that the act which imposed it was repugnant to the constitution of the United States, as it impaired the obligation ol^ the contract created by the charter of incorporation. Held, that the act of the legislature of Rhode Island, imposing a tax, which, under the law, was assessed 467 571 SUPREME COURT. [Brown v. The State of Maryland.] on the Providence Bank, does not impair the obligation of the contract created by the charter granted to the bank. The Providence Bank v. Billings and PUtman, 4 Peters, 514. It has been settled, that a contract entered into between a state and an individual is as fully protected by the prohibitions contained in the tenth section, first article of the constitution, as a contract between two individuals ; and it is not denied that a charter incorporating a bank is a contract. Ibid. The power of taxing moneyed corporations has been frequently exercised ; and has never before, so far as is known, been resisted. Its novelty, however, furnishes no conclusive argu- ment against it. Ibid. That the taxing power is of vital importance ; that it is essential to the existence of govern, ment; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it ; that a consideration sufficiently valuable to induce a partial release of it may not exist ; but as tlie whole community is interested in retain- ing it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not ap- pear. Ibid. The power of legislation, and consequently of taxation, operate on all,the persons and pro- perty belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself; and need not be reserved wher^ property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. Ibid. However absolute the right of an individual maybe, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legis- lature. This vital power may be abused ; but the constitution of the United States was not intended to furnish the correction of every abuse of power which may be committed to the state governments. The intrinsic wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation, as well as against unwise legislation generally. Ibid. The plaintiff in error was seized and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the itrr/cy-i United States. He was seized while performing, under the sanction of the *chief ' '*J magistrate of the union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. It cannot be less clear when the judgment aflTects personal liberty, and infiicts disgraceful punishment ; if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operatiori of this unconstitutional law than if it afi'ected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country. Worcester v. The State of Georgia, 6 Peters, 516. The effect of a discharge under an insolvent law of a state is at rest, so far as it depends on the antecedent decisions made by this court. The ultimate opinion delivered by Mr. Justice Johnson in the case of Ogden v. Saunders, 12 Wheal. 213, 258, was concurred in and adopted by the three judges who were in the minority on the general question of the constitutionality of state insolvent laws. So far then as decisions on the subject of state insolvent laws have been made by this court, they are to be deemed final and conclusive. Boyle v. Zacharie and Turner, 6 Peters, 348. 468 JANUARY TERM, 1827. 572 The United States v. Gooding. 12 Wheaton's Reports, 460. Upon an indictment under tlie slave trade act of the 20th of April, 1818, ch. 373, against the owner of the ship, testimony of the declarations of the master, being a part of the res gestje, connected with acts in furtherance of the voyage, and within the scope of his authority, as agent of the owner, in the conduct of the guilty enterprise, is admissible in evidence against the owner. Upon such an indictment against the owner, charging him with fitting out the ship with intent to employ her in the illegal voyage, evidence is admissible that he commanded, authorized, and superintended the fitment, through the instrumentality of his agents, without being personally present. [See note at the end of the case.] It is not essential to constitute a fitting out, under the acts of congress, that every equipment necessary for a slave voyage, or any equipment peculiarly adapted to such a voyage, should be taken on board ; it is sufficient if the vessel is actually fitted out with intent to be enr- ployed in the illegal voyage. In such an indictment, it is not necessary to specify the particulars of the fitting out ; it is suf- ficient to allege the offence in the words of the statute. Nor is it necessary that there should be any principal offender whom the defendant might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessary in cases of felony ; both the actor, and he who aids and abets the act, are considered as principals. It is necessary that the indictment should aver, that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States. *An averment that the ship was fitted out, &c., "with intent that the said vessel rjtcno should be employed" in the slave trade, is fatally defective, the words of the L •"«' statute being, " with intent to employ" the vessel in the slave trade, and exclusively refer- ring to the intent of the party causing the act. Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed, and decided during the trial before the jury ; but, generally speaking, they ought regularly to be considered only upon a motion to quash the indictment, or in arrest of judg- ment, or on demurrer. In criminal proceedings, the onus probandi rests upon the prosecutor, unless a difierent provision is expressly made by statute. ' THIS was a prosecution in the circuit court of Maryland, against the defendant, Gooding, under the slave trade act of the 20th of April, 1818, ch. 373. The indictment alleged, 1, that the said Gooding, being a citizen of the United States, after the passing of the act of the congress of the United States, entitled, " an act in addition to an act to prohibit the introduction of slaves into any port or place within the jurisdiction of the United States, from and after the 1st day of January, in the year of our Lord 1808, and to repeal certain parts of the same," that is to say, after the 20th of April, 1818, to wit, on the 30th day of Septem- ber, in the year 1824, at the district of Maryland, did fit out for him- self, as owner, in the port of Baltimore, within the jurisdiction of the United States, and within the jurisdiction of this court, a certain vessel called the General Winder, with intent to employ the saia vessel, the Geheral Winder, in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to another place, to wit, to the island of Cuba, in the West Indies, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided, to the evil example of all others in like case offend- 2P 469 573 SUPREME COURT. [United States v. Gooding.] ing, and against the peace, government, and dignity of the said United States. 2. That the said Gooding, a citizen of the said United States, and residing therein, to wit, at the district aforesaid, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, within the jurisdiction of this court, at the district aforesaid, did, for himself, as owner, send away from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel, called the Gene- ral Winder, with intent to employ the said vessel, the General Winder, in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to another place, to wit, to the island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the United States. *5741 *^" ^^^^ *^® ^^^^ Gooding, a citizen of the said United States, J and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did aid in fitting out, for himself, as owner in the port of Baltimore, within the jurisdic- tion of the United States, to wit, at the district aforesaid, a certain other vessel, called the General Winder, with intent that the said ves- sel, the General Winder, should be employed in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to another place, to wit, to the island of Cuba, to be sold as slaves, con- trary to the true intent and meaniiig of the act of congress in such case made and provided, to the evil example of all others in like case oflend- ing, and against the peace, government, and dignity of the said United States. 4. That the said Gooding, a citizen of the said United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did abet the taking on board, from one of the coasts of Africa, divers negroes, to wit, two hundred and ninety, not being inhabitants, nor held to service by the laws of either of the states or territories of the United States, of a certain other vessel, called the General Winder, for the purpose of selling such negroes as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States. 5. That the said Gooding, a citizen of the United States, and resid- ing therein after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did for himself, as owner, cause to sail from the port of Baltimore, within the jurisdiction of the United States, a certain other vessel called the General Winder, with intent that the said vessel, the General Winder, should be employed in procuring ne- groes from a foreign country, to wit, from the continent of Africa, to be transported to another place, to wit, to the island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress in such case made and provided, to the evil example of all others in like 470 JANUARY TERM, 1827. 574 [United States v, Gooding.] case offending, and against the peace, government, and dignity of the said United States. 6. That the said Gooding, a citizen of the United States, and resid- ing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, did, for himself, as owner, cause to be sent *away from the port of Baltimore, within the jurisdiction of the r^nnn United States, a certain other vessel, called the General Winder, L with intent that the said vessel, the General Winder, should be employed in procuring negroes from a foreign country, to wit, from the continent of Africa, to be transported to a certain other place, to wit, to the island of Cuba, to be sold as slaves, contrary to the true intent and meaning of the act of congress, in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States. 7. The said Gooding, a citizen of the United States, and residing therein, after the passing of the act of congress aforesaid, to wit, on the day and year last aforesaid, at the district aforesaid, and within the ju- risdiction of this court, did, for himself as owner, or for other persons, as factor, fit out, equip, load, or otherwise prepare, a cejrtain other ship or vessel called the General Winder, in the port of Baltimore, within the jurisdiction of the United States, to wit, at the district aforesaid, or did cause the same ship or vessel, the General Winder, to be so fitted out, equipped, loaded, or otherwise prepared, with intent that the said ship or vessel, the Gieneral Winder, should be employed in procuring negroes, mulattoes, or persons of colour, from a foreign kingdom, place, or country, to wit, from the continent of Africa, to be transported to another port or place, to wit, to the island of Cuba, in the West Indies, to be there sold, or otherwise disposed of as slaves, or held to labour or service, contrary to the true intent and meaning of the act of congress, in such case made and provided, to the evil example of all others in like case offending, and against the peace, government, and dignity of the said United States. At the trial in the circuit court, the United States offered evidence that the defendant purchased of one M'EIderry the vessel called the General Winder, in the indictment mentioned, and that said vessel was built in the port of Baltimore, also in the said indictment mentioned. They further offered in evidence, that at the time said purchase was made, the said vessel was not completely finished, and that the same was finished under the superintendence of a certain captain John Hill, who was appointed by the defendant master of said vessel on her then intended voyage. They also offered in evidence, that the defendant was, at the time when the offence laid in the indictment is charged to have been committed, and at the time of his purchase of the said vessel, and ever since has been a citizen of the United States, and has con- stantly, from the time of the purchase of the said vessel, till the present period, been an actual resident in the said port of Baltimore. They further offered evidence, that after the said purchase, and after *the appointment of the said captain Hill as master as aforesaid, r*c«./. the said Hill ordered various fitments for the said vessel at the L said port of Baltimore, which said fitments were furnished for said vessel, and afterwards, on the order of said Hill, were paid for by the defend- 471 576 SUPREME COURT. [United States v. Gooding.] ant. They also offered in evidence, that some of these fitments were peculiarly adapted for the slave trade, and are never put on board any other vessels than those intended for such trade ; a part of such fitments so ordered by captain Hill and paid for by the defendant, to wit, three dozen of brooms, eighteen scrapers, and two trumpets, were actually put on board the General Winder in the port of Baltimore, the residue of the equipments on board the General Winder at the time of her de- parture, being such as are usual on board vessels carrying on trade be- tween said port and the West Indies. And the rest of such fitments, peculiar to the slave trade as aforesaid, were shipped at the said port of Baltimore, on board another vessel called the Pocahontas, chartered by the defendant : that the said vessel called the General Winder, sailed from the port of Baltimore, fitted as aforesaid, and with the said Hill as master, on or about the 21st day of August, 1824, having cleared for the island of St. Thomas in the West Indies. That the vessel called the Pocahontas also sailed for St. Thomas from the port of Baltimore, with the part of the said fitments put on board her as before-mentioned, some time in the month of September follow- ing. They also gave evidence that both the said vessels, the General Winder and the Pocahontas, afterwards arrived at St. Thomas, and that at that island the said peculiar fitments shipped as aforesaid in the Pocahontas, were there transhipped from said vessel to the General Winder, the said Hill still being the master of the said last-mentioned vessel. They also further offered in evidence, that the defendant, about six or seven months after the sailing of the General Winder from the said port of Baltimore, declared in the presence of a compe- tent witness, that the General Winder had made him a good voyage, having arrived with a cargo of slaves, the witness thought he said two hundred and ninety, and that he also declared in the presence of the same witness at another time, that he, the defendant, was the sole owner of the said vessel, called the General Winder. They also offered in evidence by another witness, that the defendant had at another time declared in the presence of this other witness, that the said witness, who was a creditor of the defendant, should be paid one-half his debt on the arrival of the General Winder at Trinidad de Cuba. The United States, further to support the said indictment, offered to give in evidence to the jury, by a certain captain Peter L. Coit, that he, captain Coit, was at St. Thomas while the General Winder was at that ^-_.„., *island, as before stated, in September, 1824, and that he was J frequently on board the said vessel, at that time at St. Thomas ; that the said captain Hill, the said master of the General Winder, then and there proposed to the said witness, captain Coit, to engage on board the General Winder as mate for the voyage then in progress, and de- scribed the same to be a voyage to the coast of Africa for slaves, and thence back to Trinidad de Cuba. That he offered to the said witness seventy^ dollars per month, and five dollars per head for every prime slave which should be brought to Cuba. That on the witness inquiring who would see the crew paid in the event of a disaster attending the voyage, captain Hill replied, "uncle John," meaning (as witness under- stood) John Gooding, the defendant. The defendant's counsel objected to the admissibility of this evidence, 472 JANUARY TERM, 1827. 577 [United States v. Gooding.] and the judges divided in opinion upon its admissibility. They also moved the court for its opinion upon the following points : 1. That on the charges contained in the first, second, third, fifth, and sixth counts in the indictment, it is incumbent on the United States to prove that the vessel, named or mentioned in the indictment, was fitted out, sent away, caused to sail, or caused to be sent away, with intent to transport negroes from the coast of Africa to the island of Cuba. 2. That evidence, that the defendant caused the vessel in question to be fitted out by captain John Hill, or any one else, will not support the first count in the indictment, in which he is charged with fitting her out himself 3. That the first count charges a fitting out in the port of Baltimore, which, according to the true legal interpretation of the words in an indictment, means a complete equipment ; and that evidence of a partial preparation here, and a further equipment at St. Thomas, will not sup- port the charge contained in this count. 4. That the defendant cannot be convicted on the first count, because no ofience is legally charged in the said count, it being necessary to specify the particular equipments in the indictment, in order that the defendant may have notice of the particular charge against him. 5. That the defendant cannot be convicted upon the third and fourth counts, because these counts do not charge any offence to have been committed by any principal, to whom the defendant was or could be aiding or abetting ; also, that he cannot be convicted upon the fourth count, unless he was actually or constructively present when the ne- groes were taken on board on the coast of Africa ; and if the defendant was in Baltimore at the time the said negroes were taken on board on the coast of Africa, he could not aid or abet within the meaning of the *fourth section of the act of congress of 20th of April, 1818, r^c^o upon which he was indicted. L 6. That the defendant cannot be convicted on the second, fifth, and sixth counts in the indictment, because no legal oflfence is charged in either of these counts, the said counts not charging that the General Winder was built, fitted, equipped, loaded, or otherwise prepared, with- in the jurisdiction of the United States ; and that the said fifth and sixth counts are also defective in charging the defendant with intent that the vessel should be employed in the slave trade, instead of charging him with intent to employ her. 7. That the defendant cannot be convicted on the third, fourth, fifth, and sixth counts, unless there be a previous conviction of the principal in the offence, in the said counts mentioned. The opinions of the judges being divided upon these points, and also upon the question of allowing objections to the form and sufficiency of the indictment to be discussed at the trial before the jury, the questions were certified to this court for final determination. The Attorney-General and Mr. Coxe, for the United States; Mr. Taney and Mr. Mitchell, for the defendant. Mr. Justice Story delivered the opinion of the court. This is the case of an indictment against Gooding for being engaged in the slave trade, contrary to the prohibitions of the act of congress of Vol. VI.— 60 2p2 473 578 SUPREME COURT. [United States v. Gooding.] the 20th of April, 1818. It comes before us upon a certificate of divi- sion of opinions in the circuit court of the district of Maryland, upon certain points raised at the trial. We take this opportunity of express- ing our anxiety, lest, by too great indulgence to the wishes of counsel, questions of this sort should be frequently brought before this court, and thus, in effect, an appeal in criminal cases become an ordinary proceeding, to the manifest obstruction of public justice, and against the plain intendment of the acts of congress. Cases of real doiibt and difficulty, or of extensive consequence as to principle and application, and furnishing matter for very grave deliberation, are those alone which can be reasonably presumed to have been within the purview of the legislature in allowing an appeal to this court upon certificates of division. In this very case, some of the questions certified may have been argued and decided in the court below upon the motion to quash the indictment ; and there are others upon which it is understood, that the circuit court had no opportunity of passing a deliberate judgment. The first question that arises is upon the division of opinions whether, under the circumstances of the case, the testimony of captain Coit to the facts stated in the record, was admissible. That testimony was to Httyvqi *the following effect : that he, captain Coit, was at St. Thomas J while the General Winder was at that island, in September, 1824, and was frequently on board the vessel at that time ; that captain Hill, the master of the vessel, then and there proposed to the witness to engage on board the General Winder as mate for the voyage then in progress, and described the same to be a voyage to the coast of Africa for slaves, and thence back, to Trinidad de Cuba; that he offered to the witness seventy dollars per month, and five dollars per head for every prime slave which should be brought to Cuba; that on the witness in- quiring who would see the crew paid in the event of a disaster attend- ing the voyage, captain Hill replied, " uncle John ;" meaning, as the witness understood, John Gooding, the defendant. It is to be observed that, as preliminary to the admission of this tes- timony, evidence had been offered to prove that Gooding was owner of the vessel ; that he lived at Baltimore, where she was fitted out, and that he appointed Hill master, and gave him authority to make the fitments for the voyage, and paid the bills therefor ; that certain equipments were put on board peculiarly adapted for the slave trade ; and that Gooding had made declarations that the vessel had been engaged in the slave trade, and had made him a good voyage. The foundation of the authority of the master, the nature of the fitments, and the object and accomplishment of the voyage, being thus laid, the testimony of captain Coit was ofiered as confirmatory of the proof, and properly admissible against the defendant. It was objected to, and now stands upon the objection before us. The argument is, that the testimony is not admissible, because, in criminal cases, the declarations of the master of the vessel are not evidence to charge the owner with an offence ; and that the doctrine of the binding effect of such declara- tions by known agents is, and ought to be, confined to civil cases. We cannot yield to the force of the argument. In general, the rules of evidence in criminal and civil cases are the same. Whatever the agent does, within the scope of his authority, binds his principal, and 474 JANUARY TERM, 1827. 579 [United States v. Gooding.] is deemed his act. It must, iadeed, be shown that the agent has the authority, and that the act is within its scope ; but these being con- ceded or proved, either by the course of business or by express author- ization, the same conclusion arises, in point of law, in both cases. Nor is there any authority for confining the rule to civil cases. On the contrary, it is the known and familiar principle of criminal jurispru-l d(3nce, that he who commands or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act. This is so true, that even the agent may be innocent, when the procurer or principal may be convicted of guilt, as in the' case of infants, or idiots, employed to *administer poison. The proof of the command or procurement r^con may be direct or indirect, positive or circumstantial ; but this is ■- matter for the consideration of the jury, and not of legal competency. So, in cases of conspiracy and riot, when once the conspiracy or com- bination is established, the act of one conspirator, in the prosecution of the enterprise, is considered the act of all, and is evidence against all. Each is deemed to consent to, or command, what is done by any other in furtherance of the common object. Upon the facts of the present ojise, the master was just as much a guilty principal as the owner, and just as much within the purview of the act by the illegal fitment. The evidence here offered was the mere declarations of the master upon other occasions, totally disconnected with the objects of the voyage. These declarations were connected with acts in furtherance of the objects of the voyage, and within the general scope of his authority as conductor of the enterprise. He had an implied authority to hire a crew, and do other acts necessary for the voyage. The testimony went to establish that he endeavoured to engage captain Coit to go as mate for the voyage then in progress, and his declarations were all made with reference to that object, and as persuasives to the undertaking. They were, therefore, in the strictest sense, a part of the res gestae, the neces- sary explanations attending the attempt to hire. If he had hired a mate, the terms of the hiring, though verbal, would have been part of the act, and the nature of the voyage, as explained at the time, a ne- cessary ingredient. The act would have been so combined with the declarations, as to be inseparable without injustice. The same authority from the owner which allows the master to hire the crew, justifies him in making such declarations and explanations as are proper to attain the object. Those declarations and explanations are as much within the scope of the authonity as the act of hiring itself. Our opinion of the ad- missibility of this evidence proceeds upon the ground that these were not 'he naked declarations of the master, unaccompanied with his acts in I that capacity, but declarations coupled with proceedings for the objects of the voyage, and while it was in progress. We give no opinion npon the point whether mere declarations, under other circumstances, would have been admissible. The principle which we maintain is stated with great clearness by Mr. Starkie, in his Treatise on Evidence, (2 Stark. Emd., part 4, p. 60.) " Where," says he, " the fact of agency has been proved, either expressly or presumptively, the act of the agent, co-ex- tensive with the authority, is the act of the principal, whose mere in- strument he is, and then, whatever the agent says within the scope of his authority, the principal says, and evidence may be given of such 475 581 SUPREME COURT. [United States v. Gooding.] ^^oi-| *acts and declarations as if they had been actually done and J made by the principal hiniself."(a) The other questions arise from the instructions or opinions prayed for by the defendant at the trial upon matters of law, upon which, also, the judges were divided in opinion. The first instruction prayed puts the poijit, whether the burden of proof of the offences charged in the indictment did not rest upon the United States. Without question it does in all cases where a party stands charged with an offence, unless a different provision is made by some statute ; for the general rule of our jurisprudence is, that the party accused need not establish his innocence; but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction. This question has been abandoned at the argument here, and is too plain for controversy, since there is no statuteable provision altering the general principle in this particular. The second instruction is conceived in very general terms, so general, indeed, that it cannot be supported if it is to be understood in its obvi-' ous sense. It asks the court to instruct the jury that evidence that the defendant caused the vessel to be fitted out by captain Hill, or any one else, will not support the first count in the indictment, in which the de- fendant is charged with fitting her out himself. This obviously covers t"he case where the fitting out is by the instrumentality of any other persons, however innocent of his design, even though the defendant himself should be personally present, either really or constructively, and superintending the whole operations. To this extent it is clearly unmaintainable. But, in a more restrictive sense, it involves the ques- tion, whether evidence that the owner commanded, authorized, and superintended the fitment through his agents, without his personal pre- sence, would support this count. We are of opinion in the affirmative. The act of congress does not require that the fitting out should be by the owner personally, without the assistance or agency of others. The act itself is of a nature which forbids such a supposition. The fitment of a vessel is ordinarily, and, indeed, must be dpne through the instru- mentality of others. . It is not a single act, but a series of subordinate operations, requiring the co-operation of persons in various trades and arts, all conducing to the same end. It would be against the plain sense of the legislature, to interpret its language to mean that the act which it punishes, and which must or may be done by many in the ordinary course of business, shall only be punishable when the extra- ordinary fact occurs of its being done by one person. If done by others under the command and direction of the owner, with his approbation ^P-QOT and for his *benefit, it is just as much in contemplation of law J his own act, as if done by himself. To this extent, at least, the maxim may be safely applied, qui facit per alium, facit per se. And it cannot be material whether it be done in his absence from, or his pre- sence in, the scene. Especially there can be no doubt that the principle ought to be applied with increased force, where the owner resides at the same port, or neighbourhood, and superintends the course of the operations, even if he does not see them. Even in the highest crimes, those who are present, aiding and commanding, or abetting, are deemed (a) See also, 2 Staik. Evid. part 4, p. 403, 404. 476 JANUARY TERM, 1827. 582 [United States v. Gooding.] principals ; and, if absent, in treason and in misdemeanors, they are still deemed principals ; though it may be necessary, in treason, to lay the overt acts precisely according to the fact from considerations peculiar to that offence. This instruction ought, therefore, to have been refused. The third instruction turns upon the point, whether the fitting out, in the sense of the act of congress, means a complete equipment, so that a partial equipment only will extract the case from the prohibitions of the statute. This objection appears to us to proceed from a mistaken view of the facts applicable to the case. If the vessel actually sailed on her voyage from Baltimore for the purpose of employment in the slave trade, her fitment was complete for all the purposes of the act. It is by no means necessary, that every equipment for a slave voyage should have been taken on board at Baltimore ; or, indeed, any equip- ments exclusively applicable to such a voyage, should have been on board. The presence of such equipments may furnish strong presump- tive proof of the object of the voyage, but they do not constitute the offence. The statute punishes the fitting out of a vessel with intent to employ her in the slave trade, however innocent the equipment may be, when designed for a lawful voyage. It is the act combined with the intent, and not either separately, which is punishable. Whether the fitting out be fully adequate for the purposes of a siave voyage may, as matter of presumption, be more or less conclusive ; but if the intent of the fitment be to carry on a slave voyage, and the vessel depart on the voyage, her fitting out is complete, so far as the parties deem it neces- sary for their object, and the statute reaches the case. But we are also of opinion, that any preparations for a slave voyage, which clearly manifest or accompany the illegal intent, even though incomplete and imperfect, and before the departure of the vessel from port, do yet constitute a fitting out within the purview of the statute. This was held by this court upon full consideration in the cases of the Emily and Caroline, 9 Wheat. Rep. 381, 5 Cond. Rep. 633, and the Plattsburgh, VQJVheat. Rep. 133, 6 Cond. Rep. 43. Those cases, in- deed, arose upon the construction of the slave trade acts of 1794, 1800, *and 1807 ; but the language of those acts is almost literally r^coo transcribed into the statute of 1818, and the construction adopted '- therein must govern the present case. In either view, therefore, our answer to the third prayer is, that a complete equipment is not neces- sary to be proved, but any partial preparation, which demonstrates or accompanies the illegal intent, will bring the case within the statute, and support the charge in the first count of the indictment. The fourth instruction respects the sufiiciency of the averments of the first count ; and it is contended that there ought to have been a specification of the particulars of the fitting out, and that it is not sufli- cient to allege the act itself without them. The indictment, in this respect, follows the language of the statute, and is as certain as that is. We cannot perceive any good reason for holding the government to any greater certainty in the averments of the indictment. The fitting out of a vessel may, and niust, consist of a variety of minute acts and pre- parations, almost infinite in their detail, and the enumeration would an- swer no valuable purpose to the defendant to assist him in his defence, and subserve no public policy. The fitting out of a vessel is a sort of 477 583 SUPREME COURT. [United States v. Gooding.] business, which is as clear and definite as any other ; and we might just as well in an indictment upon the act for building a ship with the illegal intent, require that the government should particularize the acts of building through their whole details, as those of equipment. The building of a ship is not an act more certain in its nature than the fit- ting out of a ship. The particular preparations are matters of evidence, and not of averment. Every man may well be presumed to know what are the fitments of a vessel for a voyage, without more particularity. The objection proceeds upon the supposition, that ordinary equipments only, though combined with the illegal intent, are not within the act ; and that extraordinary equipments only for such a voyage are provided for. This has been already shown tp be an incorrect exposition of the statute. It imputes no guilt to any particulars of the equipment, but to the act combined with the illegal intent. In general, it may be said, that it is sufficient certainty in an indict- ment to allege the offence in the very terms of the statute. We say, in general, for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature, or from the applica- tion of known principles of law. At the common law, in certain de- scriptions of offences, and especially of capital offences, great nicety and particularity are often necessary. The rules which regulate this branch of pleading were sometimes founded in considerations which no longer exist either in our own or in English jurisprudence; but a rule, being once established, still prevails, although, if the case were new, it might not ^KQA-i *now be incorporated into the law. So, again, in certain classes J of statutes, the rule of very strict certainty has sometimes been applied where the common law fijrnished a close and appropriate ana- logy. Such sire the cases of indictments for false pretences, and send- ing threatening letters, where the pretences and the letters are required to be set forth, from the close analogy to indictments for perjury and forgery. Courts of law have thought such certainty not unreasonable or inconvenient, and calculated to put the plea of autre fois acquit, or convict, as well as of general defence at the trial, fairly within the power of the prisoner. But these instances are by no means considered as leading to the establishment of any general rule. On the contrary, the course has been to leave every class of cases to be decided very much upon its own peculiar circumstances. Thus, in cases of conspi- racy, it has never been held necessary to set forth the overt acts or means, though these might materially assist the prisoner's defence. So, in cases of solicitation to commit crimes, it has been held sufficient to state the act of solicitation, without any averment of the special means. And in endeavours to commit a revolt, which is by statute in England made a capital offence, it has always been deemed sufficient to allege the offence in the words of the statute, without setting forth any parti- culars of the manner or the means. These cases approach very near to the present ; and if any, by way of precedent, ought to govern it, they well may govern it. The case of treason stands upon a peculiar ground; there the overt acts must, by statute, be specially laid in the indiclment, and must be proved as laid. The very act, and mode of the act, must, therefore, be laid as it is intended to be proved. If the party be only constructively a principal, as an absent and distant coadjutor or leader, it may be necessary to aver the fact accordingly. There is great good 478 JANUARY TERM, 1827. 584 [United States v. Gooding.] sense in the rule which has been laid down, that where the offence is made up of a number of minute acts, which cannot be enumerated upon the record without great prolixity and inconvenience, and the danger of variance, they ought to be dispensed with. The present case is a fit illustration of the rule ; the fitting out is a compound of various minute acts, almost incapable of exact specification. The fifth instruction turns upon a doctrine applicable to principal and accessory in cases of felony, either at the common law or by statute. The present is the case of a misdemeanor, and the doctrine, therefore, cannot be applied to it ; for in cases of misdemeanors, all those who are concerned in aiding and abetting, as well as in perpetrating the act, are principals. Under such circumstances there is no room for the question of actual or constructive presence or absence ; for whether present or absent, all are principals. They may be indicted and pun- ished *accordingly. Nor is the trial or conviction of an actor r^coc indispensable to furnish a right to try the person who aids or '■ abets the act ; each in the eye of the law is deemed guilty as a princi- pal. In the present indictment, the offence is in the third and fourth counts laid by aiding and abetting, in the very terms of the act of con- gress. If the crime, therefore, could be supposed to be of an accessorial nature, it is truly alleged, according to the fact, and not merely accord- ing to the intendtnent of law. We do not consider that the terms " aid" and " abet," used in this statute, are used as technical phrases belong- ing to the common law, because the offence is not made a felony, and, therefore, the words require no such interpretation. The statute punishes them as substantive offences, and not as accessorial, and the words are, therefore, to be understood as in the common parlance, and import assistance, co-operation, and encouragement. These remarks furnish an answer to the seventh instruction, which must share the fate of the fifth. The sixth instruction is that which has presented the most difficulty. It embraces two propositions ; the first is, that the second, fifth, and sixth counts in the indictment, ought to have contained an averment that the vessel was built, fitted out, &c., within the jurisdiction of the United States ; the second is, that the fifth and sixth counts do not allege the offence in the words of the statute, those words being, " with intent to employ the vessel" in the slave trade, &c., whereas each of these^ counts avers, " with intent that the said vessel should be em- ployed" in the slave trade, which imports a very different state of facts. In order to understand these exceptions, it is necessary to attend care- fully to the very words of the act of congress. The second section enacts, " that no citizen pr citizens, &c., shall, after the passing of this act as aforesaid, for himself, themselves, or any other person or persons whatsoever, either as master, factor, or owner, build, fit, equip, load, or otherwise prepare, any ship or vessel, in any port or place within the jurisdiction of the United States, nor cause any such ship or vessel to sail from any port or place whatsoever within the jurisdiction of the same, for the purpose of procuring any negroes, &c., to be transported, &c., as slaves." The third section enacts, " that every person or per- sons so building, fitting out, equipping, loading, or otherwise preparing, or sending away, or causing any of the acts aforesaid to be done, with intent to emplov such ship or vessel in such trade or business, after the 479 585 SUPREME COURT. [United States «. Gooding.] passing of this act, contrary to the true intent and meaning thereof, or who shall in any wise be aiding or abetting therein, shall severally, on conviction thereof by due course of law, forfeit," &c. &c. The first point turns upon the interpretation of the words "such ship or vessel," in each of these sections. To what do they refer? The only ship or vessel *'i8fil *®P°'^^" of '"^ either section, is such as have been built, fitted J out, &c., in some port or place of the United States. " Such ship or vessel" must, therefore, refer to a ship or vessel so built, fitted out, &c., as its antecedent, or the relative " such" can have no mean- ing at all. The word is sensible in the place where it occurs, and it is the duty of the court, when it can, to give effect to every word in every enactment, if it can be done without violating the obvious intention of the legislature. This is a penal act, and is to be construed strictly, that is, with no intendment or extension beyond the import of the words used. There is no certainty that the legislature meant to prohibit the sailing of any vessel on a slave voyage, which had not been built, fitted out, &c., within the jurisdiction of the United States. If a foreign vessel, designed for the slave trade, and fully fitted out for that pur- pose, were, by accident or design, to anchor in our ports, it would not be reasonable to suppose that the legislature could have intended the sailing of such a vessel from our ports to be an offence within the pur- view of our laws. Yet, if the construction contended for on behalf of the United States be adopted, that would be the result. But it is sufficient to say, that the word "such" has an appropriate sense, and can be reasonably referred only to the ship or vessel pre- viously spoken of; and such ship or vessel is not merely one built, fitted out, &c., but one built, fitted out, &c., in a port or place within the United States. The whole description must be taken together. If we were to adopt any other construction, we should read the words as if " such" were struck out, and the clause stood, " any ship or vessel." Such a course would not be defensible in construing a penal statute. It is remarkable, that in the slave trade acts of 1794, 2 U. S. L. 383, and of 1807, 4 U. S. L. 94, the word " such" is omitted, and seems to have been introduced into the act of 1818, ex industria. We must take the law as v?e find it, and, upon examination of its language, we are of opinion, that this exception is well taken. The cases of the United States u. Lacoste, 2 JWasora's iJep. 129, and the United States V. Smith, 2 Mason's Rep. 143, have been cited at the bar as contain- ing a difierent opinion expressed in the circuit court in Massachu- setts. I owe it in candour to acknowledge, that the fact is so ; but I have no recollection that the point was made at the argument, and I am confident that it never was insisted upon in the view which has been presented by the argument in this court. My own error, however, can furnish no ground for its being adopted by this court, in whose name I speak on the present occasion. The other point is equally fatal. There is a clear distinction between causing a vessel to sail, or to be sent away, with intent to employ her *'i871 *'" ^^^ slave trade, and with intent that she should be employed J in that trade. The former applies to an intent of the party Causing the act, the latter to the employment of the vessel, whether by himself or a stranger. The evidence may fully support these counts, and yet may not constitute an offence within the act of congress ; for 480 JANUARY TERM, 1827. 587 [United States v. Gooding.] the employment by a mere stranger would not justify the conviction of the party charged with causing her to sail, or to be sent away, with intent to employ her in the slave trade, as owner. There is no reason, in criminal cases, why the court should help any such defective allega- , tions. The words of the statute should be pursued. It remains only to consider the point, whether these objections to the sufficiency of the indictment could be properly taken at this stage of the proceedings. Undoubtedly, according to the regular course of practice, objections to the form and sufficiency of an indictment ought to be dis- cussed upon a motion to quash the indictment, which may be granted or refused in the discretion of the court, or upon demurrer to the indict- ment, or upon a motion in arrest of judgment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided during the trial of the facts by the jury. It would be very inconvenient and embarrassing to allow a discussion of such topics during the progress of the cause before the jury, and in- troduce much confusion into the administration of public justice. But, we think, it is not wholly incompetent for the court to entertain such questions during the trial, in the exercise of a sound discretion. It should, however, be rarely done, and only under circumstances of an extraordinary nature. The circuit court, in the present case, did allow the introduction and discussion of these questions during the trial, and were divided upon the propriety of the practice. We can only certify, that the court possessed the authority, but that it ought not to be exer- cised, except on very urgent occasions. A certificate will be sent to the circuit court of the district of Mary- land, according to this opinion. Th£ principles adjudged in the following note are in consonance with the law of this case. Construction of the third section of the act passed April 20, 1818, to prohibit violations of the neutrality of the United States. United States v. Quincy, 6 Peters, 445.' Indictment under the third section of the act for the punishment of certain crimes against the United States, &c., passed April 20, 1818. The indictment charged the defendant with being knowingly concerned in the fitting out, in the port of Baltimore, a vessel, with intent to employ her in the service of a foreign " people," the United Provinces of Buenos Ayres, against the subjects of the emperor of Brazil, with whom the United States were at peace. The vessel went from Baltimore to St. Thomas, and was there fully armed. She afterwards cruised under the Buenos Ayrean flag. To bring *the defendant within the words of the act, it is r.^.|-Qo not necessary to charge him with being concerned in fitting out and arming the vessel: L '^'^^ the words of the act are, " fitting out or arming." Either will constitute the offence. It is sufficient if the indictment charges the offence in the words of the act. Ibid. It is true, that with respect to those who have been denominated at the bar the chief actors, the law would seem to make it necessary that they should be charged with fitting out and arming. The words may require that both shall concur, and the vessel be put in a condition to commit hostilities, in order to bring her within the law ; but an attempt to fit out and arm is made an offence. This is certainly doing sopiething short of a complete fitting out and arihing. Ibid. To attempt to do an act does not, either in law or in common parlance, imply a completion of the act, or any definite progress towards it. Any effort or endeavour to effect it will satisfy the terras of the law. It is not necessary that the vessel, when she left Baltimore for St. Tho- mas, and during the voyage from Baltimore to St. Thomas, was armed, or in a condition to commit hostilities, in order to find the defendant guilty of the offence charged in the indict- ment. Ibid. The defence consists principally in the intention with which the preparations to commit hos- tilities were made. These preparations, according to the very terms of the act, must be made within the limits of the United States ; and it is equally necessary that the intention with respect to the employment of the vessel shonid be formed before she leaves the United States. Vol. VI.— 61 - SQ 481 588 SUPREME COURT. [United States v. Marcha^t.] And this must be a fixed intention ; not conditional or contingent, depending on some future ariangements. Tliis intention is a question belonging e^fclusively to the jury to decide. It is the material point, on which the legality or criminality of the act must turn, and decides v^be- ther the adventure is of a commercial or warlike character. Jbid. The United States v. Marchant and Colson. 12 Wheatm's Reports, 480. Where two or more persons are jointly charged in the same indictment with a capital offence, they have not a right, by law, to be tried separately without the consent of the prosecutor ; but such separate trial is a matter to be allowed in the discretion of the court. The opinion of the court in this case was delivered by Mr. Justice Story. The question, which comes before us upon a certificate of a division of opinion of the judges of the circuit court of Massachusetts, is this, whether two or more persons, jointly charged in the same indictment ^.coq-i *with a capital offence, have a right, by the laws of the country, J to be tried severally, separately, and apart, the counsel for the United States objecting thereto, or whether it is a matter to be allowed in the discretion of the court. We have considered the question, and are of opinion, that it is a matter of discretion in the court, and not of right in the parties. And it has become my duty briefly to expound some of the reasons which urge us to that conclusion. The subject is not provided for by any act of congress ; and, there^ fore, if the right can be maintained at all, it must be as a right derived from the common law, which the courts of the United States are bound to recognise and enforce. The crimes act of 1790, ch. 9, provides, in the twenty-ninth section, for the right of peremptory challenge in capital cases ; and this right, to the extent of the statute, must, in all cases, be allowed the prisoners, whether they are tried jointly or sepa- i-ately. Upon a joint trial, each prisoner may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such a case possess the power of peremptory challenge to the aggregate of the numbers to which they are respectively entitled. This is the rule clearly laid by Lord Coke, Lord Hale, and Serjeant Hawkins, and, in- deed, by all the elementary writers, (a) One consequence of this, in ancient times, was, that embarrassments often arose at trials at the assizes, on account of a defect of sufficient jurors. The statute of Westminster, % ch. 38, ordained, "that in one assize no more shall be returned than twenty-four." The common practice under this statute used to be, for the sheriff to return forty- eight jurors, although the precept named but twenty-four. It was, (o) Hawk. P. e. b. 3, cb. 41, ». 9 ; 2 Hale's PI. C. 268 ; Co. Litt. 156 ; Beauchamp's ease, 9 Edw. IV., fofia %1, fli,4i();j Plftiisd, E^p. 100 ;, ^elyng's Kep. 9, JANUARY TERM, 1827. 589 [United States v. Marchant.] indeed, held, at an early period, that the statute of Westminster did not apply to criminal cases ; but, notwithstanding this, the usual prac- tice prevailed, unless the court directed a larger number to be returned. And it was not until the reign of George II. that a larger number was required by law to be returned at the assizes. The history of this branch of the subject is very clearly stated in 3 Bac. Abr. tit. Juries, b. 6, and in Kelyng's Rep. 16. (a) It is obvious, that on joint panels, returned for joint trials, at the assizes, a defect of jurors might, from this limitation, often take place. And it became a question, in very early times, whether, under such circumstances, the court had power, against the will of the prisoners, to sever the panel, and to try them severally, if *they insisted upon their right of several challenge. It was r^ann decided, upon full consideration, that the court had this power. L To this effect are the cases in Plowden, 100 ; in Dyer, 152, b ; and in Kelyng's Rep. 9 ; and the doctrine has received the sanction of lord Hale, and other writers of the highest authority. Whether, then, prisoners, who are jointly indicted, can, against their wishes, be tried separately, does not admit of a doubt. It remains to consider, whether they can insist upon a several trial. The sole ground upon which this claim can rest must be, if main- tainable at all, that they have a right to select their jury out of the whole panel, and that as, upon a joint trial, one may desire to retain a juror who is challenged by another, and, if challenged by one, he must be withdrawn to all, this right of selection is virtually impaired. But it does not appear to us that this reasoning can, upon the principles of the common law, be supported. The right of peremptory challenge is not of itself a right to select, but a right to reject jurors. It excludes from the panel those whom the prisoner objects to, until he has ex- hausted his challenges, and leaves the residue to be drawn for his trial according to the established order or usage of the court. The element- ary writers nowhere assert a right of this nature in the prisoner, but uniformly put the allowance of peremptory challenges upon distinct jjrounds. Mr. Justice Blackstone, in his Commentaries, 4 Bl. Comm. 353, puts it upon the ground, that the party may not be tried by per- sons against whom he has conceived a prejudice, or who, if he has un- successfully challenged them for cause, may, on that account, conceive a prejudice against the prisoner. The right, therefore, of challenge, does not necessarily draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not try him ; but not to say who shall be the particular jurors to try him. The law pre- sumes, that every juror sworn in the case, is indifferent and above legal exception : for otherwise he may be challenged for cause. What jurors, in particular, shall try the cause,. depends upon the order in which they are called ; and the result is a mere incident following the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge. This view of the general principle of the common law is very much confirmed by other considerations. It is laid down by Haiukins, PI, Cr. b. 2, ch. 41, s. 8, that where several persons are arraigned on the same indictment, and severally plead not guilty, it is in the election of (o) See also 2 Hale's P. C. 863. 483 590 SUPREME COURT. [United States v. Marchant.] the prosecutor, either to take out joint venires against them all, or se- veral against each of them. This plainly supposes that it is in the elec- tion of the prosecutor whether there should be a joint or separate trial. *5Q1T *^^ ^^'^re had been any known right in the" prisoner to control -■ this election, it seems incredible that so accurate and learned an author should not have stated it, when the occasion indispensably re- quired him to take notice of a qualification so important to his text. His silence is, under such circumstances, very significant. . But a still more direct conclusion against the right may be drawn from the admitted right of the crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the states in the union ; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is, not as to what is the state prerogative, but, simply, what, is the common law doctrine as to the point under consideration. Until the statute of 33 Edw. I., the crown might challenge peremptorily any juror, without assigning any cause ; but that statute took away that right, and narrowed the challenges of the crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the crown to show cause at the tirne of objection taken, but to put aside the juror until the whole panel is gone through. Hawkins, on this point, says, PI. Cr. b. 2, ch. 43, s. 3, " if the king challenge a juror before the panel is perused, it is agreed that he need not show any cause of his challenge, till the whole panel be gone through, and it appears that there will not be a full jury with- out the person so challenged. And if the defendant, in order to oblige the king to show cause, presently challenge, touts paravaile; yet it hath been adjudged, that the defendant shall be first put to show all his causes of challenge before the king need to show any." And the learned author is fully borne out by the authorities which he cites, and the same rule has been recognised down to the present times, (a) This acknowledged right of peremptory challenge existing in the crown before the statute of 33 Edw. I., and the uniform practice which has prevailed since that statute, to allow a qualified and conditional exercise of the same right, if other sufficient jurors remained for the trial, demonstrate, as we think, that no such power of selecting his jury belongs, or was ever supposed to belong, by the common law, to the prisoner ; and that, therefore, he could not demand, as matter of right, a separate trial to enable him to exercise it. In a separate or joint ^-Qn-| *trial, he could at any time be defeated by the crown of such J choice, by its own admitted prerogative. The circumstances already alluded to, of the right of each prisoner on a joint trial to exercise his full right of peremptory challenge, and the small number of jurors usually returned on the panel at the assizes, accounts in a very satisfactory manner for the language used in some of the cases, as to the necessity of directing separate trials where the (a) Hale's P. C. ch. 36, 271 ; 3 Bac. Abridg. Jury, E. 10 ; Rex v. Conigsmarke, 9 Howell's State Trials, 1 ; Rex v. Stapkton, 8 Howell's State Trials, 502 ; Rex v. Bmoaky, 9 Howell's State Trials, 1 ; Rex v. Gray, 9 Howell's State Trials, 127, S. C, T. Eayn). 473 ; Rex v. Grahme, 12 Howell's State Trials, 646; Rex v. Cook, 13 Howell's State Trials, 311 ; Rex v. Home Tooke, 25 Howell's State 'frials, 1,4; 1 Chitty's Grim. Law, 533 ; Rex v. Campion, 1 Howell's State Trials, 1050. 484 JANUARY TERM, 1827. 592 [United States a. Marchant.] prisoners refused to join in their challenges. The plain reason was, that otherwise there could be no trial at all, for defect of jurors, at the same assizes; and, therefore, the court, in furtherance of public justice, were accustomed, without the consent of the prisoners, to direct a separate trial. In this way the reason of the practice is understood by lord Hale, 2 Hale P. C. ch. 34, p. 263, and by Hawkins, Hawk. P. C. b. 2, ch. 41, s. 9, and by other more recent writers on common law.(a) In this manner the language of lord Holt in Charnock's case, 12 Howell's State Trials, 1454, S. C, 3 Salk. 81, is to be interpreted; for it is ma- nifest, that he could not intend that there could not be a joint trial where the prisoners challenged separately, for no rule was better settled in his time than that they could. Indeed, in Rex v. Grahme, 12 HoioelVs State Trials, 646, 673, the same learned judge uses similar language in a sense which admits of no other interpretation ; and this was the answer given' to it when cited in a later case for the like purpose. That case is Rex v. Noble and others, in 1713, before lord chief justice Parker, and reported in the state trials, 9 Hargr. St. Tr. 1, S. C, 15 Hoioell's St. Tr-. 731. In that case, which was an indictment for murder, Noble moved the court for a separate trial, and the motion was denied. He Was convicted, and when brought up for judgment he moved in arrest of judgment this very matter, that there was a mis- trial, because (to use his own words) " we were severed in our chal- lenges, and yet were tried together by the same jury ;" and he relied upon the language of lord Holt, in Charnock's case, as in point. The court overruled the objection, and stated, that lord Holt's language referred solely to the public inconvenience, on account of a probable defect of jurors, and not to any matter of right in the prisoners. Sen- tence was accordingly passed upon the prisoner, and he was executed. There is a curious and learned commentary appended in a note to this trial, which was printed before the execution of Noble, in which an attempt was made to question the correctness of the decision. But it is therein admitted, that Noble's counsel declined to argue the point, ♦though requested ; from which we cannot but infer, that they r^ano thought the objection unfounded. The decision itself has never L since been questioned, or denied. We have, therefore, in the present case, not merely the absence of any authority in favour of the matter of right, but the course of practice, and the general reasoning deducible from the prerogative of the crown against it ; and, lastly, a direct au- thority, in times when the administration of criminal justice was unsus- pected, on the very point. Such is the substance of the reasons which induce us to decide against the claim as a matter of right. In our opinion, it is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known hurtianity of our criminal jurisprudence. A certificate is, accordingly, to be sent to the circuit court. (a) 1 Chitty's Grim. Law, 535 ; see Starkie's Crim. PI. 35. 2q2 485 593 SUPREME COURT. The United States v. Three Hundred and Fifty Chests of Tea. Lippincott and others, Claimants. 12 Wheaton'a Reports, 486. The term •' concealed," as used in the sixty-eighth section of the duty act of the 2d of March, 1799, ch. 128, applies only to articles intended to be secreted and withdrawn from public view on account of the duties not having been paid, or secured to be paid, or from some other fraudulent motive. The forfeiture inflicted by that section, does not extend to a case where, the duties not having been paid or secured in any other manner than, by giving the general bond, and storing the goods according to the sixty-second section of the act, the goods were fraudulently removed from the store-house agreed upon by the collector and the importer, by some persons other than the claimants, who were bona fide purchasers of the goods, and without their knowledge and consent, to another port, where the goods were found stowed on board the vessel in which they were transported, in the usual manner of stowing such goods when shipped for transportation. ' Under the sixty-second section of the act, in the case of teas, the duties " are secured to be paid," in the sense of the law, by the single bond of the importer, accompanied by a deposit of the teas imported, to be kept under the lock and key of the inspector, and subject to the control of the collector and naval officer, until the duties are actually paid, or otherwise secured ; ^cQ .-■ and no forfeiture is incurred, under the sixty-eighth section, *by the removal "''*J and concealment of the goods on which the duties have been thus " secured to be paid." To authorize the seizure, and biinging to adjudication of teas, under the forty-third section oi the act, it is necessary, not only that the chests should be unaccompanied by the propei certificates, but also by the nyirks required to be placed upon them by the thirty-ninth section. The lien of the government for duties, attaches upon the articles from the momen'^ of their importation, and is not discharged by the unauthorized and illegal removal of the goods fron) the custody of the custom-house officers. Qusere, whether such lien can be enforced against a bona fide purchaser withoot notice tha the duties were not paid or secured ? The lien for duties cannot, in any case, be enforced by a libel of information in the admiralty the revenue jurisdiction of the district courts, proceeding in rem, only extending to cases o' seizures for forfeitures under laws of impost, navigation, or trade of the United States. But a suit at common law may be instituted in the district or circuit courts, in the name of tht United States, founded upon their legal right to recover the possession of goods upon whicU they have a lien for duties, oir to recover damages for the illegal taking or detaining thu APPEAL from the circuit court of the southern district of New York. The Attorney-General for the United States : Mr. Webster ?.ad. Mr. Coxe, for the claimants. Mr. Justice Washington delivered the opinion of the court. This was a libel filed in the district court of the United States for the southern district of New York, in the name of the Utiiled States, against three hundred and fifty chests of hyson skin tea, imported from Canton in the ship Benjamin Rush, as forfeited to the use of the United States. The libel charges, that the chests of teas were seized by the collector of the customs for the district of Philadelphia, on the 6th of Decem- ber, in the year 1825, at the city of New York, on waters navigable from the sea by vessels of ten or more tons burden, and alleges three 486 JANUARY TERM, 1827. 594 f United States v. Three Hundred and Fifty Chests of Tea.] distinct grounds of forfeiture. First, that the teas, being subject to pay duties, were imported into the United States at Philadelphia, and were there unladen without having been entered at any custom-house, and without a permit from any collector and naval officer, or from any col- lector of the customs of the United States, the duties imposed thereon not having been paid, or secured to be paid, according to law. Secondly, that the said chests of tea, so imported, and subject to pay duties, were afterwards found concealed on board a certain vessel, in the southern district of New York, the said duties not having been paid, or secured to be paid, as the law requires. Third, that the said teas, being so imported, and subject to duties, were, landed at Philadelphia without the permit of the inspectors of the customs of that district, and were deposited in a storehouse in the said district, agreed on by the collector *of the said district and Edward Thomson, the importer of the r^iznr. said teas, who, previous to the landing thereof, elected to give, '- and did actually execute and give, to the collector of the said district, his bond, without a surety, in double the amount of duties chargeable on the whole amount of teas so imported, in conformity with the pro- visions of the sixty-second section of the act to regulate the collection of duties on imports and tonnage. That the said teas were afterwards clandestinely and fraudulently removed by the said Thomson, or his agents, from the storehouse in which they had been deposited, without any permit from the collector and naval officer of the said district, and without the duties thereon having been first paid, or secured to be paid, and were afterwards found concealed as before mentioned. To this libel a claim and answer were filed on behalf of Joshua Lip- pincott, William Lippincott, and Benjamin, W. Richards, of Philadel- phia, setting forth that the said teas were imported into Philadelphia by Edward Thomson, who had the same regularly entered, and unladen under a permit duly granted by the collector, in the presence of the proper custom-house officers of that port ; and that the said chests of tea were duly inspected, weighed, marked, and numbered, as the law required. That bond was given by Thomson, and the teas were stored, as stated in the libel, in conformity with the sixty-second section of the iaw therein referred to ; that a certificate, signed and sealed in due form of law, was issued to accompany each of the chests of tea, which certifi- cates were delivered to Thomson, and afterwards came to the possession of the claimants, to whom a bill of sale of the said teas had been made by the said Thomson, as a security for certain large advances made by them to Thomson, and that the said certificates were then held by them as their property. This bill of sale being set out in the claim, purports to convey to the claimants all Thomson's right in these, and other chests of teas, with power to enter the same, from the custom- house stores, and to secure the duties thereon, should it be deemed ne- cessary as a collateral security for certain notes granted, and to be granted, to Thomson, by the claimants. The claim then proceeds to state, that Thomson, at the same time, endorsed to the claimants the invoice and bills of lading of the said teas, and delivered the same, together with the bill of sale, and his key of the store, in which the teas were deposited, to the claimants ; that the chests of tea mentioned in the libel were taken from the store-house in which they had been deposited without the knowledge or consent of the claimants, nor can they say fcy 487 595 SUPREME COURT. [United States v. Thiee Hundred and Fifty Cliests of Tea.] what means they were so taken ; but they have heard and believe, that they were taken out by Thomson, to whom the claimants had deliv- ered the key for another purpose, and were delivered to Francis H. ^rqj,-, *Nicoll, who caused them to be shipped to New York, with full J notice at the time that they were the property of the claimants. The district court decreed the teas to be forfeited to the United States, from which sentence an appeal was prayed to the circuit court, where the same was reversed, and restitution decreed to the claimants, from which last decree the cause comes before this court by appeal ; and the only question to be decided is, whether, upon this libel, arid the facts agreed upon in the district court, the teas in question are liable to for- feiture for any of the causes stated in the libeh The first ground of forfeiture alleged in the libel, is so satisfactorily disposed of by the facts agreed in the case, that it was not relied upon, or even noticed, in tiie argument of the cause in this court* The charge is, that the teas in question, being subject to the payment of duties upon their importation, were unladen at the port of Philadelphia, with- out iiaving been entered at any custom-house, and without a regular permit to land the same having been first obtained. The facts agreed, admit that they were entered, inspected, bonded, and stored, according to law, and particularly to' the sixty-second section of the duty act, as alleged to the claim. The next alleged cause of forfeiture is, that the teas were found con- cealed on board a certain vessel, the duties thereon not having been paid, or secured to be paid. This charge is also negatived by the statement of facts, which ad- mits, that the teas were not secreted, nor were they found secreted at the time of seizure, on board the vessel where they were seized, but were then and there stowed in the usual and customary manner of stowing such property, when put oh board for transportation. It is, nevertheless, insisted, on the part of the United States, that although the conclusion that the teas were not found secreted, must now be ad- mitted as a fact not to be controverted in argument, nevertheless, the court is bound to say that, upon a view of the facts agreed in the state- ment, which forms part of this record, they were concealed in point of law, and according to the true intent and meaning of the act of con- gress, under which the seizure was made. These facts are, that, after the teas were placed in the store-house agreed upon by the collector and fhe impcwter, they were fraudulently removed from thence by some persons other than the claimants, and without their knowledge or con- sent ; and after a regular entry and clearance at the custom-house in Philadelphia, were shipped on board the vessel in which they were seized, and transported to the port of New York, the duties thereon not having been paid or secured, in any other manner than by giving the ^cqiy-i *general bond, and storing the teas according to the provisions J of the sixty-second section of the duty act. This question arises out of the sixty-eighth section of the duty act, and depends upon the true construction of that section. It declares, so far as concerns this particular case, " that every collector, &c., shall have full power and authority to enter any ship or vessel in which they shall have reason to suspect any goods, dec, subject to duties, are con- cealed, and therein to search for, seize, and secure, any such goods," 488 JANUARY TERM, 1827. 597 [United States v. Three Hundred and Fifty Chests of Tea.] fee, and " all such goods, &,c., on which the duties shall not have been l-'tiid, or secured to be paid, shall be forfeited." The argument upon this section is, that, after the goods are stored according to the provisions of the sixty-second section, the fraudulent removal of them from the place in which they are so deposited, without a permit, and without paying or securing the duties, in the mode pre- scribed by the act, amounts to a concealment of them, in whatever" place, and under whatever circumstances, they may be found ; that the real ground of forfeiture of goods so removed is the non-payment of the duties, or the not securing of the same according to the provisions of this section ; and the concealment of them is merely a circumstance to warrant the custom-house officer in searching for, seizing, and bringing them to adjudication. The court cannot yield its assent to either of these propositions. The act provides for, and defines by express enactments, the various acts which should draw after them the penalty of forfeiture of the goods imported. Thus, if they be unladen at any other time than in open day, unless by a special license, or at any other time, without a permit by the proper officer, they are subject to forfeiture under the fiftieth section ; and the like consequence follows as to distilled spirits, wines, or teas, which aj-e landed without the special permit provided for by the thirty-seventh section, or otherwise than under the inspection of the surveyor or other officer acting as inspector of the revenue, contrary to the direction of the thirty-eighth section. These are all acts of illegal importation, and on that ground the goods are made liable to forfeiture. But after they are regularly entered, landed, bonded, and stored, there is no part of this act which exposes them to this penalty for being ille- gally withdrawn from the place of their deposit without a permit from the proper officer, or without the duties thereon being first paid or secured to be paid. Nor would it seem, but for the extraordinary cir- cumstances which have attended these and the other teas mentioned in these proceedings, to have been necessary to devise other guards than those which the sixty-second section of the act has provided for securing to the United Stated the payment of the duties. The key of one of the *-locks to be placed on the Store in which the teas are deposited, r#cQQ is directed to be retained by the inspector, who is forbidden to L deliver out any part of them without a written permit from the col- lector and naval officer, to the obtaining of which it is necessary that the duties should be first paid on the parcel which the owner desires to remove, or should be secured to be paid by a bond with surety or sure- ties to the satisfaction of the collector, on the penalty and on the terms prescribed in this section. The security thus provided by the deposit might be lost by the destruction of the articles themselves by fire, or might be jeoparded by the fraudulent, the felonious, or the violent re- moval of them from the place of their supposed safe custody. But that they should be so removed with the fraudulent connivance, or in con- sequence of the culpable carelessness, of the inspector, or of any other officer of the customs, was a risk which probably did not enter into the contemplation of the legislature. Be this as it may, it is perfectly clear that no provision is anywhere made to meet the case of goods so ille- gally removed, whether by subjecting them to forfeiture, or by pointing out any other remedy to guard the government against the loss to which Vol. VI. — 62 489 598 SUPREME COURT. [United States u. Three Hundred and Fifty Cliests of Tea.] those acts might expose it. A remedy, although it may under certain circumstances be an inadequate one, is, nevertheless, provided by the general principles of law. The lien of the government for the duties •which attached upon the articles from the moment of their importation, was not and could not be discharged by the unauthorized and illegal removal of the articles from the custody of the inspector, or other cus- tom-house officer, having charge of them, and might have been enforced by the ordinary remedies provided by law in similar cases. Whether it could be enforced against a fair bona fide purchaser of goods, re- moved from the store by a permit from the proper officers, without notice that the duties were not paid or secured, is a question which does not arise in this case, and upon which no opinion, therefore, is intended to be given. In order, then, to subject teas, illegally removed from the store-house in which they were deposited, to forfeiture under this count in the libel, it is essential for the United States to prove, upon the trial, not only that the duties for which they were liable were unpaid, or not secured to be paid, but that they were found concealed at the time they were seized. A suspicion of this fact, if honestly entertained by the person searching for and making the seizure, would be sufficient to protect him against any claim for damages in consequence of those acts, although it should afterwards appear on the trial that, in point of fact, the articles were not concealed. But the owner of the goods is not put upon his trial to prove that the duties were paid or secured, until that fact is established. The expressions in the latter part of this section ^cqq-, *leave no room for doubt upon this point. They are, that " all -' such goods, &c., on which the duties shall not have been paid, or secured to be paid, shall be forfeited," that is to say, the goods so concealed and seized. , The argument, that goods subject to duties are, in the view of the law, and by a fair construction of this section, concealed wherever and under whatever circumstances they may be found, is equally inadmis- sible. If that were the intention of the legislature, the offence would consist, not in the concealing of such goods, but in having the posses- sion of them ; and the authority to seize, applying to such a case, would, no doubt, have extended to all goods wherever found out of their place of deposit, on which the duties had not been paid, or secured to be paid. The term concealed used in this section, is one of plain interpre- tation, and obviously applies to articles intended to be secreted and withdrawn from public view, on account of their being so subject to duties, or from some fraudulent motive. But if the argument upon this part of the case were w^ell founded, the count in the libel which we are now examining, could not be main- tained, since we are all of opinion, that the duties upon these teas were secured to be paid, within the fair construction of the sixty-second sec- tion of the duty law. By this section, the duties upon all goods im- ported, and subject thereto, are to be paid, or secured to be paid, before a permit to land them can be granted. If the importer elect not to pay them, he is at liberty to secure them by bond with one or more sureties to the satisfaction of the collector, or the collector may accept his own bond without sureties ; but, in the latter case, the goods themselves must be deposited with the proper custom-house officer pointed out in 490 JANUARY TERM, 1827. 599 [United States v. Three Hundred and Fifty Chests of Tea.] (he section. These provisions apply, thus far, to all kinds of goods. The difference as to the mode of securing the duties between teas im- ported from China or Europe, and other goods, consists in the following particulars. As to the former, the teas, where bond without sureties is given, are to be deposited, at the expense and risk of the importer, in a store to be agreed on by him and the inspector, on which the inspec- tor is to affix two locks, the key of one to be retained by himself, and the other to be kept by the importer ; and it is made the duty of the inspector to attend, at all reasonable times, for the purpose of deliver- ing out the teas as the same may be required ; but he is forbidden to deliver any part of them without a permit in writing, signed by the collector and naval officer, to the obtaining of which, it is required, that the duties on the teas to be delivered shall be first paid, or secured to be paid, by a bond to be given with a surety or sureties, to the satis- faction of the collector, for payment of the duties at particular periods mentioned *in the section. And in case the duties should not r^ann be paid at the period so stipulated in the first bond, or secured '- to be paid in the manner last specified, the collector is required to sell, at public auction, so much of the teas as may be necessary, and after retaining the sum which shall not have been so paid, or secured, together with the expenses of sale and safe-keeping of the teas, to return the overplus, if any, to the owner thereof. As to goods other than teas, if the importer elect, instead of paymg the duties, or securing the same by giving bond with satisfactory sure- ties, to give his own bond without sureties, the collector is required to accept such bond, together with a deposit of so much of the goods on which the duties are payable, as in his judgment shall be sufficient security for the amount of the duties for which such bond shall have been given, together with the charge of safe-keeping, and seizing the same, which goods, so deposited, are to be kept by the collector at the expense and risk of the party on whose account , they were deposited, until the sum specified in the bond shall become due ; and if the same be not then paid, so much of the goods deposited as may be necessary to discharge the duties and expenses are to be sold, and the proceeds to be disposed of as in the former case. From this recital of the most material parts of the above section, it is most apparent, that the legislature contemplated the bond of the impor- ter, accompanied by a deposit of all the teas imported, to be kept under the lock and key of the inspector, and subject to the control of the col- lector and naval officer, until the duties were paid, or otherwise secured, as an equivalent security, with a bond, and approved sureties, if the im- porter had elected to give such a bond in the first instance. By no other construction can the express terms of the section be satisfied. The im- porter has an option allowed him at the time of making his entry, to secure the duties, instead of paying them. How may he secure them? The section proceeds immediately to point out the two following modes: ' on the same terms and stipulations as on other goods imported ;" that IS to say, by bond, with sureties satisfactory to the collector, or " by his own bond in double the amount of the duties," which latter bond, ac- companied by the deposit of the teas, as before mentioned, the collector is required to accept. It is perfectly obvious, that this latter security is to be accepted in lieu of, and as equivalent to, the former. And we 491 600 SUPREME COURT. [United States v. Three Hundred and FUVy Chests «' Tea.] may confidently ask, is it not so? The condition of t^e China trade must be in a deplorable state, and must necessarily be discontinued, whenever the value of the teas imported from that country shall fall below the amount of the duties imposed upon them; and unless such a state of things could have been contemplated, what better security for *fiOn *P3^y™6nt of the duties could have been devised, consistent with J the existence of the trade itself, than the uncontrolled possession of the articles subject to the duties, with the power to sell the same for their discharge in case they should not be paid when they should become due, or should not be otherwise secured to be paid? As an additional evidence that congress considered this security as at least equivalent to bond with approved securities, this section goes on to provide, that the amount of each bond taken for the duties on any teas delivered under a permit from the store after a deposit, shall be endorsed immediately on the original bond given by the importer, specifying the amount of duty secured on the teas delivered out, by whom, and the term of pay- ment. If, then, the whole quantity of teas deposited should be with- drawn in the mode prescribed by this section, either at one, or at dif- ferent periods, before the expiration of the term of credit allowed, the United States would have precisely the same security that they would have had, if the importer had, in the first instance, elected to give bond, with approved sureties, instead of his own bond, accompanied by a deposit of the articles themselves subject to the duties. In consequence of an intimation of the attorney-general, that in case the decision of the court should be against the United States upon what we have called the second count in the libel, he should move to amend the libel by inserting a count under th6 forty-third section of this law, the cause was argued at the bar as if such a count now formed a part of the libel. But, if the above opinion be correct, it is manifest that such a count would not help the case, since, if the duties were secured to be paid according to the provisions of the sixty-second section, no forfeiture could be decreed under the forty-third section. The facts agreed, present, besides, an additional reason why such a decree could not properly be made under that section, since they admit, that each chest of the teas in question, at the time of seizure, was duly numbered, and had on it all the marks which the law requires, and that the certi- ficates required by the act to accompany each of the chests, remained in the hands of the claimants at Philadelphia. Now, we are all of opinion, that, to authorize a seizure of teas, and bringing them to adju- dication, it is necessary, under the forty-third section, not only that the chests should be unaccompanied by the proper certificates, but also that they should be unaccompanied by the marks required to be placed upon them by the thirty-ninth section. Both must concur in order to justify a seizure, and to raise such a presumption that the teas are liable to forfeiture, as to throw upon the claimant the burden of proving that they were imported according to law, and that the duties thereon were paid, or secured to be paid, in order to avoid a sentence of condemnation. *fi021 *Enough has already been said to dispose of the third count -■in the libel, even if it had been pressed in the argument of the cause, since it is not pretended that there is any section of the above act which subjects teas to forfeiture, on the ground of their havins 492 JANUARY TERM, 1827. G02 [United States v. Three Hundred and Fifty Chests of Tea.] been clandestinely and fraudulently removed from the store in which they were deposited, by the importer or by any other person, without a permit, and without the duties thereon having been first paid or se- cured to be paid. It is quite unlikely that a case so extraordinary and disgraceful as that which has given rise to this controversy, was, or could have been anticipated by the legislature, which enacted the law under consideration. One would have supposed, but for the instance before us, that the act had provided every guard for the safety of the public interest, which any imaginable contingency could have rendered necessary. The only remaining objection taken to the decree of the circuit court is, that the payment of the duties to which these teas were subject, ought to have been made a condition of their restitution to the claim- ants, or that they should have been decreed to be sold towards the pay- ment of the duties for which the original bond of Thomson was given, and which remained unpaid. Admitting that those duties were even now due, which is not the case, we could not yield our assent to the correctness of this objection, even if the prayer of the libel had corresponded with such a decree, and even if the teas in question were liable for duties beyond those properly chargeable against the quantity seized, which is by no means conceded. By the ninth section of the judiciary act, the district courts have exclusive original cognisance, amongst other subjects, of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade, of the United States, where the seizures are made on waters navigable from the sea by vessels of a spe- cified burden, within their respective districts, as well as upon the high seas ; and, also, of all seizures made on land, or other waters than as aforesaid, and of all suits for penalties and forfeitures incurred under the laws of the United States. They have, also, cognisance concur- rent with the state courts, of all suits at common law where the United States sue, where the matter in dispute, exclusive of costs, amounts to the sum or value of one hundred dollars. Now, it is not pretended that this is a civil cause of admiralty and maritime jurisdiction ; and it has already been shown, that there is no law of the United States, of impost or otherwise, to warrant the seizure of the teas in question, or to subject them to forfeiture. But, even if there were such a law, the only proceeding which could have been in- stituted under it, must have been, to forfeit the articles seized, and not to subject them to the payment of duties. If the case be not one of *forfeiture, we can perceive no ground upon which the district r^nniy court could entertain a suit, by way of libel, to enforce the pay- ■- ment of duties. No jurisdiction is conferred upon that court in such a case, either by the above section of the judiciary act, or by any other act of congress. There is no doubt, but that a suit at common law might be instituted in that court, as well as in the circuit court, in the name of the United States, founded upon their legal right to recover the possession of goods upon which they have a lien for duties, or damages for the illegal taking or detaining of the same. But the remedy which has been selected, is not one which can obtain the sanc- tion of this court. 2R 493 G03 SUPREME COURT. [United Stales v. Three Hundred and Fifty Cheas of Tea.] The decree of the circuit court, reversing that of the district court, and awarding restitution to the claimants, must be affirmed. Priority of the United States. The following cases have been decided since the Reports of Mr. Wheaton : What is the nature and effect of the priority of the United States, under the statute of 1799 cli. 128, sec. 65. Conard v. The Atlantic Insurance Company, 1 Peters, 438. It is obvious, that the latter clause of the sixty-fiflh section of the act of 1799, is merely an explanation of the term "insolvency" used in the first clause, and embraces three classes of cases, all of which relate to living debtors. The case of deceased debtors, stands wholly upon the alternative, in the former part of the enactment. Ibid. Insolvency, in the sense of the statute, relates to such a general divestment of property, as would in fact be equivalent to insolvency in its technical sense. It supposes, that all the debtor's property has passed from him. This was the language of the decision in the case of the United States v. Hooe, 3 Cranch, 73, 2 Cond. Rep. 294, and it was consequently held, that an assignment of part of the debtor's property, did not fall within the provisions of the statute. Ibid. Mere inability of the debtor to ,pay all his debts, is not an insolvency within the statute ; but it must be manifested in one of the three modes pointed out in the explanatory clause of the section. Ibid. The priority, as limited and established in favour of the United States, is not a right which supersedes and overrules the assignment of the debtor, as to any property which the United States may afterwards elect to take in execution, so as to prevent its passing by virtue of such assignment to the assignees ; but it is a mere right of prior payment, out of the general funds of the debtor, in the hands of the assignees; and the assignees are rendered personally liable, if they omit to discharge the debt due to the United States. Ibid. It is true, that in discussions in courts of equity a mortgage is sometimes called a lien for a debt ; and so it certainly is, and something more ; it is a transfer of the property itself, as security for the debt. This must be admitted to be true at law, and it is equally true in equity ; for in this respect equity follows the law. The estate is considered as a trust, and according to the intention of the parties, as a qualified estate and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense, that it is sometimes called a lien ; and then only by way of contrast, to an est-ute absolute and indefeasible. Ibid. It has never yet been decided by this court, that the priority of the United States will divest a specific lien, attached to any thing, whether it be accompanied by possession or not. Ibid. ■The case of Thelluson v. Smith, 3 Wheat. 396, 4 Cond. Rep. 183, turned upon its own „„^, *particular circumstances, and did not establish any principles different fr6m those ""^J which are recognised in this case. And it establishes no such proposition, as that a specific and perfected lien can be displaced by the mere priority of the United States. Ibid. It is not understood, that a general lien, by judgment on lands, constitutes, per se, a property or right in the land itself. It only confers a right to levy on the same, to the exclusion of other adverse interests, subsequent to the judgment ; and when the levy is actually rtiade on the same, the title of the creditor relates back to the time of the judgment, so as to cut out in- termediate encumbrances. But, subject to this, the debtor has full power to sell or othervtise dispose of the land. Ibid. ■Twenty-three cases of silk were imported from Canton in the ship Rob Roy into the port of Boston, consigned to George D'Wolf and John Smith. After the arrival of the vessel with the merchandise on board, the collector caused an inspector of the customs to be placed on board. Soon afterwards, and prior to the entry of the merchandise, and prior to the payment or any security for the payment of the duties thereon, the merchandise was attached by the dep6ly sheriff of the county, in due form of law, as the property of G. D'Wolf and J. Smith, by virtue of several writs of attachment issued from the court of common pleas for the county of Suffolk, at the suit of creditors of G. D'Wolf and J. Smith. These attachments were so made prior to the inspector's being sent on board the vessel. At the time of the attachment, the sheriff offered to give security for the payment of the duties on the merchandise, which the collector declined accepting. The merchandise was sent to the custom-house stores by the inspector, and several days after, the custom-house storekeeper gave to the deputy sheriff sin agreement signed by him, reciting the receipt of the merchandise frojn the iiis[)eclor ; and stating, " I hold the said merchandise to the order of James Dennie, deputy sheriff." The marshal of the United States afterwards attached, took, and sold the merchandise undet writs and process, in favour of the United Slates, against George D'Wolf; which writs were founded 494 JANUARY TERM, 1827. 604 [United States v. Three Hundred and Fifty Cliests of Tea.] on duty bonds, due and unpaid, for a larger amount than the value of tlic merchandise, given before by D'Wolf and Smith ; who, before the importation of the merchandise, were indebted to the United States on various bonds for duties, besides those on which the suits were insti- tuted. Held, that the attachments issued out of the court of common pleas of the county of Suffolk, did not affect the rights of the United States to hold the merchandise until the pay- ment of the duties Upon them ; and that the merchandise was not liable to any attachment by an officer of the state of Massachusetts, for debts due to other creditors of George D'Wolf and John Smith. Harris v. Dennie, 3 Peters, 292. The United States have no general lien on merchandise, the property of the importer, for duties due by him upon other importations. The only effect of the first provision in the sixty- second section of the act of 1799, ch. 128, is that the delinquent debtor is denied at the custom- house any further credit for duties until his unsatisfied bonds are paid. He is compellable to pay the duties in cash, and upon such payment he is entitled to the delivery of the goods im- ported. The manifest intention of the remaining clause in the section, is to compel the original consignee to enter the goods imported by him. Ibid. No person but the owner or original consignee, or, in his absence or sickness, his agent or factor, is entitled to enter the goods at the custom-house, or give bond for the duties, or to pay the duties (sec. 36 and 62). Upon the entry the original invoices are to be produced and sworn to ; and the whole objects of the act would be defeated by allowing a mere stranger to make the entry, or take the oath prescribed on the entry. Ibid. The United States having a lien on goods imported for the payment of the duties accruing on them, and which have not been secured by bond, and being entitled to the custody of them from the time of their arrival in port until the duties are paid or secured; "any attach- ri,f.rv(- ment by a state officer is an interference with such lien and right to custody ; and, L ""*' being repugnant to the laws of the United States, is void. Ibid. The acknowledgment of the custom-house storekeeper, that he holds goods, upon which the duties have not been secured or paid, subject to an attachment issued out of a state court at the suit of a creditor of the importer, was a plain departure from liis duty, and is not authorized by the law of the United States, and cannot be admitted to vary the rights of the parties. Ibid. The plaintiff in replevin, James D'Wolf, claimed the merchandise under an assignment executed by George D'Wolf and John Smith to him, in consideration of a large sum of money due by them to James D'Wolf, and in consideration of advances to be made to them by him. The assignment transferred four vessels and their cargoes, three of which vessels were then at sea, and one in New York ready to sail, the property of the assignors. The assignment was to be void on the payment to James D'Wolf of the money due to him; and if it should not be paid, the assignee to enforce the pledge by process and arrest in all countries or places what- soever, and to sell the same for the payment of the amount due by them, the assignors, to George D'Wolf. The merchandise for which this action of replevin was instituted was part of the return cargo of one of the vessels. The defendant, Harris, pleaded that the merchandise was not the properly of the plaintiff, but of George D'Wolf and John Smith ; and justified the taking of the goods of the plaintiff, as marshal of the district of Massachusetts, by virtue of a writ of attachment sued out in the district court of the United States for the district of Massachusetts, in which suit judgment was obtained against George D'Wolf. On the trial, the plaintiff in the replevin proved the assignment ; that large sums of money were due to him by George D'Wolf and John Smith ; that the goods were part of the property assigned; that he had used all proper means to take possession of the goods, but was prevented by the attach- ment issued by the United States. The defendant proved that the goods were imported into the United States by D'Wolf and Smith ; and that at the time of the importation, they were indebted to the United States for duties which were due and unpaid, to an amount exceeding the value of the merchandise attached ; and that the Octavia, one of the vessels assigned, witl! a cargo on board ready for sea, was at New York at the time of the assignment ; which ship was not delivered to James D'Wolf, the assignee, nor were the bills of lading assigned ; the cargoes on board the vessels being consigned to the masters for sales and returns. By the court : in the Case of Gonard v. The Atlantic Insurance Company, 1 Peters, 306, it was de- cided that the non-delivery of a vessel assigned to secure or pay a bona, fide debt, did not make the assignment absolutely void. This court is well satisfied with that opinion, tiarris v. U'TVo//, 4 Peters, 147. The deed of assignment conveyed to the assignee a right to the proceeds of the outwarn- bound cargoes on board the vessels assigned to James D'Wolf. The failure of George D'Wolf to deliver to the assignee the copies of the bills of lading which were in his possession, did not leave the property subject to the attachment of creditors, who had no notice of the deed. It was held in the case of Canard v. The Atlantic Insurance Company, that such a transfer 495 605 SUPREME COURT. [Potter V. Gardner.] gives the assignee a right to take and hold those proceeds against any person but the consignee of the cargo, or purchaser from the consignee without notice. Ibid. That the consignees of the merchandise were indebted to the United States on duty bonds remaining due and unpaid at the time of the importation, did not, under the sixty-second sec- tion of the act of March 2, 1799, make the merchandise, as to the United States, the property of the consignees, notwithstanding the assignment ; and make the attachment of the United States for the debt due to them sufficient to bar the action of replevin brought by the assignee. Ibid. The same right of priority which belongs to the government, attaches to the claim of *R(\R'\ *"" '"'^'''i''"*'> wliOi ss surety, has paid money to the government. Hunter *. The """J Vnited States, 5 Peters, 172. , The United States obtained a judgment against Smith, an insolvent debtor, previous to his assignment under the insolvent laws of Rhode Island. Under his assignment a debt for money paid by him to the United States as surety on duty bonds for the Crarys passed to his assignee. The Crarys had claims upon Spain, which were afterwards paid under the Florida treaty ; and the assignee of Smith received the amount of the Spanish claim in satisfaction of the payments made for the duty bonds by Smith. The judgment by the United States against Smith having preceded the assignment, and the receipt and distribution of the money received from the Spanish claim under the insolvent law, the government having an unquestionable right of priority on all the property of Smith, it extended to, the claim of Smith on the Crarys. If the right of the United States to a priority of payment covers any part of the property of an in- solvent, it must extend to the whole, until the debt is paid. Ibid. The claim of Smith on the Crarys was properly included in his assignment under the insol- vent laws, however remote the probability may have been at the time of realizing the demand. It was an assignable interest. If at the time of the assignment this claim was contingent, it is no longer so. It has been reduced into possession, and is now in the hands of the repre- sentative of the debtor to the general government. If under such circumstances the priority of the government does not exist, it would be difficult to present a stronger case for the opera- tion of this prerogative. Ibid. The priority of the United States extends as well to debts by bonds for duties which are payable after insolvency or decease of the obligor, as to those actually payable or due ^t the period thereof. The United States v. The State Bank of North Carolina, 6 Peters, 29. Peters's Digest, " Priority of the United States." Potter, Appellant, v. Gardner and others, Respondects. 12 Wheaion's Reports, 498. A devise : " I give and devise to my beloved son, E. W. G., two third parts of that my ferry farm, so called," &c., " to him, the said E. W. G., and to .his heirs and assigns for ever, he, my said son E. W. G., paying all my just debts out of said estate. And I do hereby order, and it is my will, that my son E. W. G. shall pay all my just debts out of the estate herein given to him as aforesaid," creates a charge upon the estate in the hands of the devisee. A bona fide purchaser, who pays the purchase-money to a person authorized to sell, is not bound to look to its application, whether in the case of lands charged in the hands of an heir or devisee with the payment of debts, or lands devised to a trustee for the payment of debts. But if the money be misapplied by the devisee or trustee, with the co-operation of the pur- chaser, he remains liable to the creditors for the sum so misapplied. y»^~-. *0n a bill filed by an executor against a devisee of lands charged with the payment "J of debts, for an account of the trust fund, &c., the creditors are not indispensable parties to the suit. The fund may be brought into court, and distributed under its direction, according to the rights of those who may apply for it. APPEAL from the circuit court of the United States for the district of Rhode Island. 496 *i JANUARY TERM, 1827. 607 [Potter V. Gardner.] This cause was argued by the Attorney-General and Mr. Potter, for the appellant : and by Mr. Webster and Mr. D. B. Ogden, for the re- spondents. Mr. Chief Justice Marshall delivered the opinion of the court. This is an appeal from a decree of the court of the United States for the first circuit in the district of Rhode Island. The case was this: On the 7th of July, 1817, Peleg Gardner made his last will, in which, among other things, he devised as follows : " I give and devise to my beloved son Ezekiel W. Gardner two third parts of all that my ferry farm, so called," &c., " to him the said Ezekiel W. Gardner, and to his heirs and assigns for ever, he, my said son Ezekiel W. Gardner, paying all my just debts out of said estate. And I do hereby order, and it is my will, that my son Ezekiel W. Gardner shall pay all my just debts out of the estate herein given to him as aforesaid." The testator gives to his wife, the plaintiff, Hannah, a part of his real and personal estate for life, in lieu of dower, and to his daughter, the other plaintiff, other parts of his real and personal estate. Peleg Gardner died soon after the making of his will, and his several devisees entered into the estates devised to them respectively. On the 13th of July, 1818, the court of probates for the county, in pursuance of a statute made for that purpose, appointed commissioners to receive and examine the claims of the creditors, who made a report on the 10th day of July, 1820, from which it appears that the debts proved against the estate and allowed, amount to seven thousand five hundred and ninety-three dollars and fourteen cents, exclusive of a claim of one thousand dollars exhibited by one Mann, which was dis- allowed, and for which a suit has been commenced against the exe- cutrix. The testator had devised the remaining third part of his ferry estate to his daughter Isabel, who had sold and conveyed the same to her brother Ezekiel. After which Ezekiel agreed to sell the whole estate to the appellant, Elisha R. Potter, for the amount of fifteen thousand dollars. ' This bill is filed by the executrix and devisees of Peleg Gardner, to subject the purchase-money of the ferry estate to the payment of the •testator's debts. The decree of the circuit court was in favour r#(«f|o of the plaintiffs below ; and from that decree Elisha R. Potter '■ has appealed to this court. The bill contains many charges of fraudulent combination between Ezekiel W. Gardner, and Elisha R. Potter, vsrhich it would be waste of time to review in detail, because they are not sustained, and because the case rests on principles of equity, which are believed to be well settled. The first objection made to the decree is, that the plaintiffs have no '•ight to ask the aid of a court of equity, because they cannot assert the claims of the creditors who could have proceeded at law against the .estate in the hands of Ezekiel, and may now proceed at law against the remaining estate of Peleg. That the plaintiffs can give no discharge which will extinguish the rights of the creditors, and that the creditors ought, for that reason, to have been made parties to the suit. The bill states, and so is the fact, that the whole estate of Peleg Vol. VI.— 63 2r2 497 608 SUPREME COURT. [Potter D. Gardner.] Gardner, both real and personal, was disposed of by his will ; and, as the ferry estate devised to Ezekiel was the fund provided for the pay- ment of his debts, his devisees and legatees took, immediate possession of the property bequeathed to them respectively, and nothing remains in the hands of the executrix wherewith to satisfy the creditors. , The bill also states, that Ezekiel W. Gardner is insolvent, or in very doubt- ful circumstances ; that a considerable part of the purchase-money has been applied to tlie payment of his own debts, and that the plaintiffs have cause to fear that the residue will be misapplied in the like mam- ner, so that the whole trust-fund will be wasted, and the property be- queathed to them be taken by the creditors. These allegations are not controverted, and make, we think, a very clear case for an application to a court of equity. It is true, that the creditors might have been made parties defendants, but we do not think them parties who may not be dispensed witb. So much of the fund as yet remains may be brought into court, and may be distributed according to the rights of those who may apply for it. We have, then, no doubt of the jurisdic- tion of the court. We have as little doubt of the liability of the ferry estate while in the hands of Ezekiel, to the creditors of the testator. The words of the will create an express charge. " I give and devise to my beloved son, Ezekiel W. Gardner, and his heirs, for ever, two-thirds of my ferry farm, be paying ail my just debts out of said estate." More explicit words could not have been used. It is admitted by the counsel for the appellant, that these words would charge the estate in a country where the law did not previously charge it ; but since, in Rhode Island, *fiOQl *^^'^*^^ are" liable, by law, to the debts of the testator, the will -■ superadds nothing to this legal charge. It may be admitted, that, as between the devisee and the creditor, no charge is superadded by the will; but the relation of the devisees to each other is materially affected by it. A testator cannot, by his will, withdraw from his creditors any property which the law subjects to their claims, but he may provide a particular fund for his debts, and if the creditors resort to a different fund, those to whom the property so taken by them was given, are entitled to compensation out of the fund wovided for debts. Examples of this principle abound in the books. Personal property is universally liable for debts. If the particular fund provided by the testator for that object, be of that description, and a specific thing, bequeathed to another, be taken in execution by a credi- tor, it has never been doubted, that the legatee whose property has been taken, may resort to the trust fund for compensation. The prin- ciple is too well settled to be now a subject for discussion. The law of Rhode Island, then, subjecting lands to the payment of debts, can have no influence on the case before the court. The ferry estate, had it re- mained in the possession of the devisees, would not only have been liable to the creditors, but would have been liable to the other devisees and legatees, for such portions of their property as had been applied in payment of the debts of the testator. What change has been made by the sale to Elisha R. Potter ? Although this question has been argued with great earnestness, and at considerable length, scarcely any real difference exists between the Dailies. The appellees seem to yield to the authority of those modern 498 JANUARY TERM, 1827. 609 [Potter V. Gardner.] decisions which deny the distinction between lands charged in the hands of an heir, or devisee, with the payment of debts, and lands de- vised to a trustee for the payment of debts. They admit, that, in either case, the purchaser who pays the purchase-money to the person authorized to sell, is not bound to look to its application. But they -contend, that if the purchase-money be misapplied with the co-opera- ' tion of the purchaser, he remains liable to the creditors for the sum so misapplied. The counsel for the appellants assent to this proposition. It is scarcely necessary to say, that so much of the purchase-money as remained unpaid when this suit was instituted, is liable to the creditors, and is applicable by the court to the purposes of the trust. What, then, is really in dispute between the parties? Nothing but the questions how much of the purchase-money remains unpaid, and how much of it has been applied to the debts of Ezekiel, with the co-operation of Mr. Potter. The whole purchase made by Mr. Potter amounted to fifteen thou- sand *eigbt hundred dollars, of which fifteen thousand dollars r#ein were given for the ferry estate, and eight hundred for a lot in '■ Jamestown, purchased by Ezekiel from his sister Isabel. One-third of the ferry estate had also been purchased by Ezekiel from Isabel, ao that five thousand eight hundred dollars of the whole purchase-money was given for property not charged by the will of Peleg Gardner with his debts, and the remaining ten thousand dollars for property which was so charged. That sum constituted the trust fund. In the arrangement between the parties, Mr. Potter retained three thousand five hundred dollars for a debt due to himself, and paid debts due from Ezekiel, to the amount, as stated in the ansvy;ers, of one thou- sand eight hundred and thirty dollars, making, in the whole, five thou- sand three hundred and thirty dollars. On a subsequent agreement between the parties, Potter paid a debt of Ezekiel, amounting to eight hundred dollars ; so that Potter has himself paid the debts of Ezekiel to the amount of six thousand one hundred and thirty dollars, being three hundred and thirty dollars out of the trust fund. His cash pay- ments, at that time, are stated at three hundred and eighteen dollars sixty-four cents. In June, 1820, the parties came to a settlement, when a balance of seven thousand nine hundred and twenty-nine dollars sixty-two cents, was found to be in the hands of Potter, for which, he says, he gave his note, payable to order, in good mortgages in South Kingston, or in the state of New York, and a negotiable cash note, payable to the defend- ant's order, for four thousand dollars, on the 25th of March, 1822. The cash payments stated by the defendants, amount to four thou- sand three hundred and eighteen dollars sixty-four cents. The residue of the purchase-money has either been applied by Potter himself to the payment of Ezekiel's debts, or is comprejiended in the note payable in mortgages, or remains in his hands unaccounted for. In either case, it is liable, so far as it exceeds the sum of five thousand eight hundred dollars, which is not charged by the will to the creditors of Peleg Gard- ner. This court does not enter into minute calculations to ascertain the precise sum due. An account, if it be found necessary, compre- hending the necessary calculations of interest, may be taken in the cir- cuit court. The note payable in mortgages is not alleged to be paid, 499 610 SUPREME COURT. [United States v. Nicholl.] and, not being negotiable, would pass to an assignee, subject to the equity which was attached to it when in the hands of Ezekiel W. Gardner. The defendant, Elisha R. Potter, has been stated to be liable for the debts of Peleg Gardner, for so much of the purchase-money of the trust estate as remains in his hands. So far he is liable directly and imme- *filTl '^'^'^^'y' *and is properly decreed to pay the money into court. -■ ■ But, so far as he has applied the money to the debts of Ezekiel, his responsibility is not, we think, immediate, but depends on the failure of Ezekiel to pay ; the decree ought, in the first instance, to be against Ezekiel, and, if the money cannot be obtained from him, then against Elisha R. Potter. No doubt exists of the right of any of the parties to contest the claim of any creditor. The report of the commissioners may be prima facie, but is not conclusive evidence of the claim. The creditor may ascer- tain,his debt by a suit in the state court, or the executrix may contest it in the court of the United States. If Elisha R. Potter, or Ezekiel W. Gardner, suppose the executrix to be unfaithful to her duty in this respect, the court will permit either of them to use her name in oppo- sition to the claim. We are of opinion that so much of the decree as may subject Elisha R. Potter to the debts of Peleg Gardner, beyond the purchase-money remaining in his hands, and beyond the money paid by him in discharge of the debts of Ezekiel W. Gardner, after deducting therefrom the amount of the estates purchased by the said Ezekiel from his sister Isabel, ought to be reversed, and that, in all other things, it ought to be affirmed. The United States v. Nicholl. 12 Wheaion's Report), 505. The act of May 15th, 1820, ch. 625, s. 2, which requires new sureties to be given by certain public officers on or before the 30th of September, 1820, does not, expressly or by implica- tion, discharge the former sureties from their liability. The sureties are not responsible for moneys placed by the government in the hands of the prin- cipal after the legal termination of his office; but they are responsible for moneys which came into bis hands while in office, and which he subsequently failed to account for and pay over. In general, laches is not imputable to the government ; but, quffire, whether, in case there is an express agreement between the government and the principal, giving time to the latter, and suspending the right of the former to sue, the sureties are not discharged as in a similar case between private individuals 1 [See note at the end of the case.] »R191 *■* ™^™ proposition to give time and suspend the right to sue, upon certain conditions "^■^J and contingencies, which are not proved to have been complied with, or to have hap- pened, will not discharge the sureties. The cases of The United States v. Kirkpatrick, 9 Wheat. Rep. 720, 5 Cond. Hep. 733, and The United States v. Vamandt, 11 Wheat. Rep. 184, 6 Cond. Rep. 364, applied to the determination of the present case. 500 JANUARY TERM, 1827. 612 [United States ». Nicholl.] THIS cause was argued by the Attorney-General and Mr. Sampson for the plaintiffs, and Mr. D. B. Ogden for the defendant. Mr. Justice Trimble delivered the opinion of the court. The questions to be decided in this case arise out of a bill of excep- tions taken by the plaintiffs to the charge and instructions of the circuit court to the jury upon the trial of the cause, (a) The suit was founded on the official bond of Robert Swartwout as navy agent, and with whom the defendant had become bound as one of the sureties. The bond bears date the 22d day of February, 1819, and is in the penalty of twenty thousand dollars, with the usual condi- tion, to be void if Swartwout should faithfully perform the duties of his office, and account for and pay over, when required, the public property and money placed in his hands. The declaration alleges as a breach of the condition of the bond, that Swartwout's accounts had been settled by the proper accounting officers on the day of ; and that, upon that settlement, a large balance had been found against him, which he had failed and refused to pay over to the United States when required. The pleadings hav- ing been made up according to the practice of New York, so as to put in issue the matters in controversy between the parties, the plaintiffs gave in evidence to the jutythe bond,withits condition, and Swartwout's settled account, duly certified from the treasury department ; and the defendant gave in evidence a letter from the secretary of the navy to Robert Swartwout, dated the 25th day of February, 1819 ; two com- missions to Swartwout as navy agent, the one dated the 16th day of October, 1818, and the other the 30th day of November, 1818 ; and the following letter, dated the 8th day of December, 1823, from Mr. Plea- santon, agent of the treasury, to Mr. Tillotson, the district attorney, which will be more particularly noticed hereafter : " Treasury Department, Fifth Auditor's Office, December 8, 1823. Sir, From the best information I can obtain, it seems pretty certain that if we foreclose the mortgage given to the United States by general Robert Swartwout, and expose the property to sale subject to a previous ♦mortgage given to Mr. Coster, we shall lose the whole, or nearly p^^., „ all of our debt, this property being our only reliance, if the '- sureties should be discharged by due course of law from their responsi- bility for the payment of it. Under these circumstances, the only al- ternative which presents itself for securing any considerable portion of the debt is, to allow general Swartwout time within which to make an advantageous dispositioij of the property. He expresses a confident belief that in seven years he would be enabled, by connecting it with^ a banking institution for which a charter has already been granted by the state of New Jersey, not only to pay off the first mortgage, but our mortgage also. " It has been recommended by the navy department to allow this time, and I have, accordingly, instead of three years, as intimated to you some time ago, determined to allow him seven years, provided the first mortgagee will pledge himself in writing, not to molest him for the same space of time ; ,and provided also, that the bank, with which the (a") This cause was tried in the court below by the lute district judge Van Ness. 501 613 SUPREME COURT. [United States v. Nicholl.] property is to bfe connected, shall go into operation on or before the 1st of October next. Should the banking capital not be madei up by the time mentioned, and the bank fail to go into operation, this agreement is to be considered wholly null and void. You will be pleased to take such steps as will give this arrangement effect. "As the sureties on general Swartwout's bond dispute bur right to recover the penalty from them, it will be your duty forthwith to insti- tute suits against them in the circuit court, and judgment going against us there, you will remove the cause to the supreme court, it being very desirable that the law should be settled in relation to bonds so situated. I have the honour, &c. S. Pleasanton, Agent of the treasury." The circuit court decided, and, accordingly, instructed the jury, first, "that the defendant, Francis H. Nicholl, was not responsible for any defalcation that took place on the part of Robert Swartwout, as navy agent, subsequent to the 30th day of September, 1820, when, in and by the act of congress, passed the 18th of May, 1820, new sureties were required by law to be given by the said Robert Swartwout." Secondly, "that the defendant was not responsible for any deficiency of public money reported on by the account-officers of the United States, subsequent to the 30th of November, 1822, when it appeared in evi- dence, that the appointment of Robert Swartwout, as navy agent, ex- pired by its legal termination. Thirdly, " That he left it to them to decide whether the letter from S. Pleasanton, Esq., addressed to Robert Tillotson, Esq., which had been read in evidence before the jury, did give further time to Robert Swartwout for the payment of the debt due the United States ; and »fil41 *^^^ '^' *'" ^^^ opinion of the jury, the letter in question did give J time to the said Robert. Swartwout until October, 1824, or any subsequent period, that then the defendant was discharged from his liability, and their verdict should be rendered for the defendant. And, lastly, that the said several matters so produced and read in evidence, on the part of the said Francis H. Nicholl, were sufficient, in law, to maintain the issue on his part, and that the United States ought not, Upon all the matters produced in evidence, to maintain the said ac- tion," &c. These several opinions and instructions are brought before this court for re-examination by the present writ of error. Upon looking into the act of congress, passed May 15th, 1820, en- titled " an act providing for the better organization of the treasury department," which is the one referred to in the first instruction, we are satisfied it was misconstrued by the judge. The second section of the act provides a new and summary process against public defaulters and their sureties, after the 30th of September, 1820. The scope and design of the act, in requiring new sureties to be given by that day, was in order that, if such new sureties should be given, the summary process might operate upon them, as well as upon the principal, if the treasury department should elect to pursue such summary process. This is manifest from the provision in the act, that the summary pro- cess shall not affect the existing sureties. The act nowhere directs the principals to be discharged from office, Upon failure to give new sureties ; and if the act had so directed, they would have remained in office until actually removed. The law does 502 JANUARY TERM, 1827. 614 [United States v. Nicholl.] not, in terms, declare the existing sureties shall be discharged from and after the 30th of September, 1820. It would require a very strained construction of the statute to discharge them by implication, while their principals were permitted to remain in office. Such construction would be, we think, against the manifest intention of the legislature. The tenth section enacts, " that nothing in this act contained shall be construed to take away or impair any right or remedy which the United States now have, by law, for the recovery of taxes, debts, or demands." The cases of the United States v. Kirkpatrick, 9 Wheat. Rep. 720, 6 Cond. Rep. 733, arid the United States v. Vanzandt, 11 Wheat. Rep. 184, 6 Cond. Rep. 284, are, in principle, undistinguishable from this case. They decide, 1st, that laches is not imputable to the government ; 2d, that the provisions of the law requiring settlements by its officers to be made at short periods, are designed for the security and protection of the government, and to regulate the conduct of those officers; that they are merely directory to those officers, and form no part of the con- tract *with the sureties. And the last case decides, 3dly, that p^„, - where the act expressly directs a defaulting officer to be recalled L at the expiration of six months from the time of his default, his sure- ties are not discharged, but remain liable for his defaults thereafter, until he is actually recalled. If the second instruction given to the jury was intended to inform them that the defendant, as surety of Swartwout, was not legally re- sponsible for money placed by the government in his hands, after the legal termination of his office, it was unquestionably correct ; and this is the sense in which we suppose the court meant to be understood. But if it was intended to convey the idea, that he was not responsible for money which came to Swartwout's hands while in office,but which he afterwards failed to account for and pay over, it was clearly incorrect. In deciding upon the third instruction given, as to the effect and operation of Mr. Pleasanton's letter to the district attorney, it is not intended to give any intimation of what would be the opinion of this court, if it had appeared from the letter, that the government had made any arrangement with Swartwout, without the assent of his sureties, whereby the right of the government to sue upon the bond had been suspended to the 1st day of October, 1824, or to any subsequent time. Nothing of the kind appears from the letter. It speaks of a mortgage which had been given by Swartwout, upon property subject to a former mortgage to Mr. Coster ; but it does not appear that, by the terms of the mortgage, the right to sue on the official bond was suspended ; and the taking of a collateral security, without suspending the right to sue on the bond, could not bar the action on the bond. The letter speaks of an intention formed of giving time upon the mortgage, upon specified conditions and contingencies; but none of those conditions or contin- frencies are shown to have been complied with, or to have happened. The letter contains no contract, and gives no time per se, upon any consideration binding on the government; and that the letter did not intend to suspend the right of the United States to sue on this bond, is palpable, because it directs suits to be brought thereon immediately. As no fact, connected with the letter, was proved by evidence aliunde, the construction of the letter upon its face was matter of law, and the 503 615 SUPREME COURT. [M'Gill V. The Bank of the United States.] circuit court ought to have decided and instructed the jury accordingly, that nothing on the face of the letter constituted any defence to the action. There was nothing but the construction of the letter to be left to the jury, and the court ought to have informed the jury, that accord- ing to its true construction, it did not give time so as to bar the action against the surety. After the observations already made, it cannot be necessary to go ♦filfil *'"*** '^"y fui'ther reasoning to show that the circuit erred in its J concluding instruction, that, upon the whole matter, the law was for the defendant. It was a conclusion drawn by that court frorti the premises it had assumed in the former instruction given, and the error of these premises having been shown, the error of the conclusion neces- sarily follows. Some observations were made by the defendant's counsel in argu- ment, as to the manner in which the debits and credits in Swartwout's account had been adjusted by the accounting officers ; and he seemed to suppose, that credits which ought to have been applied towards the extinguishment or lessening of the debits, for money placed in his hands before the 20th of November, 1832, had been improperly applied to the transactions of Swartwout with the government after that day. The case of The United States v. January and Patterson, 7 Crdnch's Rep. 572, 2 Cond. Rep. 611, is in point to show, that, as to any dis- bursements of money after the 30th of November, 1822, for which Swartwout was entitled to credit, it was at the election of the govern- ment to apply them to either account. But there is no necessity for the application of the principle to this case ; for, upon looking into the account, we find that, after crediting Swartwout with all his disburse- ments up until the 30th of November, 1822, there remained, on that day, a balance in his hands unaccounted for, much beyond the penalty of the bond; so that no injustice is done to the surety in the manner of settling the account. Judgment reversed, and a venire facias de novo awarded. Laches. See notes, 5 Cond. Rep. 733. Sureties. See notes, ante, page 368. ♦6171 *^'^''' ^"'^ others, Plaintiffs in error, v. The President, -■ Directors, and Company of the Bank of the United States, Defendants in error. 12 Wheatan'a Reports, 611. A. W. M'G. gave a bond to the bank of the United States, with sureties, conditioned for the faithful performance of the duties of tlie office of cashier of one of the offices of discount and deposit during the term he should bold that office. The president and directors of the bank 504 JANUARY TERM, 1827. 617 [M'Gill V. The Bank of the United States.] having discovered that he had been guilty of a gross breach of trust, passed a resolution, at Philadelphia, on the 27th October, 1820, "that A. W. M'G., cashier, &c., be, and he is hereby suspended from office, till the further pleasure of the board be known :" and another resolution, " that the president of the office at Middletown, be authorized and requested to receive into his care, from A. W. M'G., the cashier, the cash, bills discounted, books, papers, and other property in said ofiice, and to take such measures for having the duties of cashier discharged, as he may deem expedient." These resolutions were immediately transmitted by mail to the president of the office at Middletown, who received them on the morning of ' Sunday, the 29th of the same month, but did not communicate them to the cashier, nor carry them into effect, until the afternoon of the 30th, between four and five o'clock : held, that the sureties continued liable for his defaults until that time. On such a bond, the recovery against the sureties is limited to the penalty. [See note at the end of the case.] Partial payments having been made by the sureties, (subject to all questions,) the application of these payments was made by deducting them from the penalty of the bond, and allowing interest on the balance thus resulting, from the commencement of the suit, there having been no previous demand of the penalty, or acknowledgment that the whole was due. But interest was refused to the sureties on the payments. [See note at the end of the case.] ERROR from the circuit court of the United States for the district of Connecticut. Mr. D. B. Ogden, for the plaintiff in error : Mr. Webster, for the defendants in error. Mr. Justice Johnson delivered the opinion of the court. This cause conies up by writ of error from the circuit court of the United States, held for the district of Connecticut, in which the defend- ants here obtained a judgment against the plaintiffs upon a penal bond, in which M'Gill was principal, the other defendants sureties. M'Gill was the cashier of one of the branches of the Bank of the United States, and this bond was given in the penal sum of fifty thou- sand dollars, conditioned for the due performance of that office. *The replication sets out a great variety of breaches, and the r^f-io cause was decided below upon a special verdict, by which was L found for the plaintiffs the sum of sixty-six thousand five hundred and forty-eight dollars, consisting of a variety of items upon which interest is charged severally, from the date of the embezzlement or other breach, to the time of finding the verdict. The verdict then finds two payments, one of twenty thousand dollars made by one of the sureties on the 16th of December, 1820 ; the other of five hundred dollars, made by another of the sureties on the 22d of December, 1820, on which they also calculate interest to the date of the verdict, and deducting the amount of principal and interest, strike a balance of forty-three thousand one hundred and eighty-two dollars and fifty cents. It also finds the following facts : " that the President and Directors of the Bank of the United States, on the 27th of October, 1820, at Phi- ladelphia, passed the following i-esolution, to wit : " whereas it appears, by the report of a committee of the office of discount and deposit at Mid- dletown, that Arthur W. M'Gill, cashier of that office, has been guilty of a gross breach of trust, in knowingly suffering over-drafts to be made by individuals ; also, by making over-drafts himself; therefore, resolved, that A. W. M'Gill, cashier of the office at Middletown, be, and he is hereby, suspended from office till the further pleasure of the board be known. Vol. VI.— 64 2 S 505 C18 SUPREME COURT. [M'GiU V. The Bank of the United States.] " On motion, resolved, that the president of the office at Middletown, be authorized and requested to receive into his care, from A. W. M'GiU, the cashier, the cash, bills discounted, books, paper, and other property in said office, and to take such measures for having the duties of cashier discharged, as he may deem expedient." Which resolutions were immediately transmitted by mail to the pre- sident of the Middletown office, who received them on the morning of Sunday the 29th of the month, but did not communicate them to M'Gill until the afternoon of the 30th, between the hours of four and five in the afternoon. It then finds, that all the breaches were incurred before the 30th, and goes on to find alternatively, so as to enable the court to giye judgment according to its views of the law, as between the parties. There ap- pear to have been various questions argued in the court below, some of which were decided for the plaintifl^, some for the defendant ; but as the plaintiff below seeks an affirmance for the judgment, and has not sued out a writ of error, it follows, that we confine ourselves to those points only which were decided against the plaintiflT here. These were two, one of them going to the whole right to recover, the other to the appli- *fi1Ql '^^ti'^'^ *of the payments towards the discharge of the sum to be J recovered. The first of these was, whether the sureties were not discharged ipso facto from further liability, by the resolution of the parent bank on the 27th ; or if not on that day, then on the 29th, the day on which it was received at Middletown by mail. If discharged on either of those days, it would follow, that tHe plaintiff's below could not have judgment, since the finding was up to the day following. We are unanimously and decidedly of opinion, that the ground as- sumed by the defendants below cannot be maintained. What was there in the resolutions of the parent bank to discharge the obligors at all from their liability? The resolution was only to suspend, and this implies the right to restore. The cashier's salary went on, and had the board rescinded their resolution, what necessity would there have existed for a redelivery of his bond ? But there is no necessity for placing the decision on this ground, since, notwithstanding the resolution of the board is expressed in the present tense, a future operation must necessarily be given it, from a cause that could not be overcome, the distance of the parties from each other. Time became indispensable to giving notice, and the day on which the communication reached the president of the Middletown bank, was a day not to be profaned by the business of a bank. There was, then, no obligation to deliver the notice, and dispossess the cashier, until the 30th, and the law makes no fractions of a day. The court below, in applying the payments, directed them to be de- ducted from the penalty of the bond, and then gave interest upon the balance thus resulting. This, with the exception of the interest, was the most favourable application possible for the defendants below; and the interest on the balance having been only allowed from the date of the suit, and the sum thus ascertained falling short of the penalty of the bond, we think the defendant below has nothing to complain of. It will be discovered, by reference to da,tes, that the payments here made preceded the institution of the suit, and, although made by the 506 JANUARY TERM, 1827. 619 [Brummond v. Preatman.] sureties, they were made severally, for any thing that appears to the contrary from the verdict. Technically, then, the judgment to be entered would have been a judgment for the penalty of the bond, and, in applying the partial payment, the court would have been governed by those principles which have been transferred in practice from the courts of equity to the courts of law, in deciding on what terms a party shall be released from the penalty of his bond. These always are, on payment of principal, interest, and costs. And it can constitute no ob- jection to the application of this principle to the case of these obligors, ♦that no interest was allowed them during the short interval r^oan between the payment and the suing out of the writ, since the <- breaches were incurred long before, and interest for the same period is refused to the bank. Judgment affirmed, with six per cent, interest. Penalty. Notes of cases as to penalties on bond or agreement. See 3 Cond, Bep. 299. Interest. Cases decided as to the allonance of interest. See 1 Cond. Rep. 155. Richard Drummond, surviving partner of Charles Drummond, V. The Executors of George Prestman. 12 Wheaton's Reports, 515. The following letter of guarantee: — "Baltimore, 17th Nov., 1803. Captain Charles Drum- mond, Dear sir, My son William having mentioned to me, that in consequence of your esteem and friendship for him, you had caused and placed property of yours and your brother's in his bands for sale, and that it is probable, from time to time, you may have con- siderable transactions together, on my part I think proper to guaranty to you the conduct of - my son, and shall hold myself liable, and do hold myself liable, for the faithful discharge of all his engagements to you, both now and in future. Geo. Pbestmait :" — will extend to a partnership debt incurred by William F. to Charles Drummond, and Richard his brother, it being proved that the transactions to which the letter related were with theiti as partners, and that no other brother of the said Charles was interested therein. [See note at the end of the case.] In such a case, the record of a judgment confessed by the principal, William P., to Richard D., as surviving [Partner of Charles and Richard D., for the amount of the debt due by William P. to the partnership firm, was held to be admissible in evidence, inter alia, to charge the guarantor, George P. under his letter of guarantee. THIS cause was argued by the Attorney-General and Mr. Meredith, for the plaintiff; by Mr. Taney and Mr. Donaldson, for the defendant. Cases cited for the plaintiff: 11 Wheat. Rep. 74, 6 Cond. Rep. 216, 2 Evans's Pothier, 312. 3 Stark. Ev. 1021, 1602. 7 Taunt. 295. W East's Rep. 271. Tell. Quarant. 105. 3 Term Rep. 454. 3 Cranch, 492, 1 Cond. Rep. 605. 3 Wheat. Rep. 148, 4 Cond. Rep. 204. *Cases cited for the defendant : 2 Saund. 411, 415. 2 Maul, r^pn, and Selw. 363. 5 Bos. and Pull. 175. 4 Cranch, 224, 2 Cond. L ^^^ 507 621 SUPREME COURT. [Drummond v. Prestman.] Rep. 95. 7 Cranch, 69, 2 Cond. Rep. 417. 1 Mason's Rep. 361, 371. 5 Esp. Cos. 26. 3 Stark. Ev. 1386. 1 Stark. Ev. 192. 3 Harris and M' Henry, 342. 4 /oAws. iiep. 511. 10 Ves. 123. Mr. Justice Johnson delivered tlie opinion of the court. This case arises on the following state of facts : Richard and Charles Drummond, being engaged in some joint mercantile adventures, which appear to have been carried on chiefly by Charles, made consignments in the year 1803 to William Prestman, then doing business as a com- mission merchant in Baltimore. George Prestman, the father of Wil- liam, thereupon addressed to Charles Drummond a letter of guarantee in these terms : " Baltimore, 17th Nov., 1803. Captain Charles Drummond. Dear sir. My son William having mentioned to me that, in consequence of your esteem and friendship for_ him, you have caused and placed pro- perty of yours and your brother's in his hands for sale, and that it is probable, from time to time, you may have considerable transactions together ; on my part, I think proper, by this, to guaranty to you the conduct of my son, and shall hold myself liable, and do hold myself liable, for the faithful discharge of all his engagements to you, both now and in future." The connection in business was kept up between the Drummonds and William Prestman until Charles's death; after which, Richard, who resided in Norfolk, came up to Baltimore to adjust the accounts of the concern with William, and then received from him an account stated as between him and Charles Drummond, on which, after some correc- tions, which appear on the face of the account, the balance is struck, for which this suit is instituted. This account commences with an acknowledgment of a balance due the Drummonds in November, 1804, and brings down their transactions to December 20th, 1805. Upon this account a suit was instituted against William Prestman in 1806, in the name of Richard, survivor of Richard and Charles Drum- mond, and a judgment confessed. William Prestman was dead at the time of the trial of this cause. This suit is now instituted upon the letter of guarantee; and the declaration, after setting out the letter and the subsequent transactions with William, demands the sum acknowledged due upon the account stated. Upon the trial, the plaintiff gave in evidence the letter of guarantee, *fi221 *^^^ account stated by William, parol evidence of subsequent J acknowledgments of its correctness, and the record of recovery upon that account, in which he confesses judgment to Richard, as sur- vivor of Richard and Charles Drummond ; also, parol evidence con- ducing to prove the joint dealings of the Drummonds. In the progress of the trial, the defendants took exception to the admission in evidence of the record of recovery against William : the court overruled the exception, and it went to the jury ; but the court refused to grant a prayer of the plaintiff, that they would instruct the jury that, upon the whole evidence, he was entitled to a verdict. And to this refusal the bill of exceptions is taken, upon which the principal question in this cause arises. 508 JANUARY TERM, 1827. 622 [Drammond v. Prestman.] As evidence was permitted to go to the jury, conducing to prove, as well the copartnership between Richard and Charles Drummpnd, as the balance due by William Prestman, and the interest of Richard in that balance, it follows that the refusal of the court to give that in- struction could only have been upon the ground that the guarantee did not cover this demand ; and this, accordingly, has been the principal question made in argument. It is contended that the correct construction of this guarantee will exclude a copartnership debt ; that, in its language and import, it is confined to liabilities to be incurred by William to Charles or Richard severally, or lo Charles individually, and cannot be extended to a co- partnership interest under a trade ostensibly carried on as between Charles'^solely, and William. We have considered this question attentively, and are unanimous in the opinion that the guarantee may well be construed to cover the joint trade of Charles and Richard. An interest of Richard is expressly contemplated by the guarantee, and the language of the letter seems more naturally adapted to a Joint than a several interest. For, a con- cern being represented in the person of any one of its members, the use of the pronoun of the second person is naturally suggested, and fami- liarly resorted to, when we address ourselves to an individual of the concern. This court is not called upon to decide whether the words might not also be correctly applied tb an individual interest as well as a joint concern ; it is enough, for the purposes of this action, if they will cover the latter. It is a rule, in expounding instruments of this character, " that the words of the guarantee are to be taken as strongly against him as the sense will admit." But it is not necessary to test this letter by any canon of the law of guarantee more rigid than the first and most general, to wit, "that no party shall be bound beyond the extent of the engage- ment *which shall appear from the expression of the guarantee, r^onn and the nature of the transaction." There is nothing on the face L of the letter which holds out the idea of a connection between William and the Drummonds, exclusively in their individual capacity. The object is, to throw business into the hands of the guarantor's son, and it could not have been inconsistent with this idea to guaranty a joint trade, as well as an individual trade. The grammatical construction of the language will sanction this idea, and the nature and object of the guarantee favours it. If it be conceded, that there is a latent am- biguity on the face of the instru-ment, that ambiguity might well be explained by the objects of the instrument, and the circumstances at- tending its origin. We are, therefore, of opinion, that the court erred in refusing the instruction as prayed, and, for that reason, the judgment must be reversed, and a venire facias de novo awarded. But, as is the practice of this court, where questions present them- selves on the record, and are argued, upon which the same cause may possibly be brought back here, the court has also considered the ques- tion whether the record of the judgment between this plaintiflT and William, was properly admitted in evidence. On this subject, it is necessary to observe, that it was not set up as a plea in bar, nor as a decision conclusive of the right of the party to recover in this action. There was evidence in the cause to establish, 2»2 509 623 SUPREME COURT- [Drummond v. Prestman.] the defendant's guarantee, and the balance acknowledged by William; also, evidence conducing to prove the joint trade carried on by Chciiles and Richard Drummond, through the hands of Charles, with William. This record was certainly competent to prove a fact which every judg- ment is competent to prove between any parties, to wit, that such a judgment was obtained between certain parties in a certain cause of action. It was also evidence to prove, that the cause of action was identically the same with the one on which this action was instituted ; g.nd that, in that suit, William Prestman solemnly acknowledges that the statement made by him in favour of Charles Drummond, was of a debt really due on a joint trade betwepn Charles and Richard Drum- mond. And why should not this be evidence against George, the guarantor, who had tendered himself as security to these individuals, in these very transactions 1 We are perfectly aware of the rule, that he who cannot profit by a judgment between other parties, should not be damnified by it. But, here, the application of the rule is in favour of the admission of this record. Suppose the suit against William Prestman had gone to a jury, and a verdict obtained against this plaintiff, can there be a doubt, that the record would have been admissible in evidence in favour of this defendant ? *fi941 *The material fact on this subject is, that the liability of the J guarantor is dependent upon the liability of the principal ; the case, therefore, is not widely different from that of accessory and prin- cipal, in which the record of the conviction of the principal is prima facie evidence against the accessory. Nor is it unlike the case of Green v. The New River Company, 4 Term Rep. 590; in which it was held, that a judgment against a master for damage, from the negligence of his servant, was good evidence against the servant in an action against him, by the master, for the same negligence ; the recovery in the one case being dependent upon that in the other. (See also Stark. Ev. 188, 189.) There, the case is presented, of a master suing the servant for damage sustained by the negligence of the servant ; the questions are, whether the master has been damnified by the negligence of the servant, and to what amount; and the record of a judgment against the master is admitted in evidence against the servant. The present case, however, is a much stronger one; it seems unique in its principle; since the object of in- troducing the record seems not so much to prove that a judgment was obtained, as that a judgment was confessed. Now, the proof of Wil- liam Prestman's liability to Drummond, was indispensable to Drum- mond's recovery against the guarantor. But this liability might have been pr&ved by a confession in writing, or even by parol, after his death, if not before ; then why not by the more solemn act of confess- ing it of record ? It is worthy of remark in this case, that the guarantee purports, by its terms, to be something more than a mere suretyship for a debt. The words are, I guaranty to you " the conduct of my son." It par- takes, therefore, of the nature of a bond given by a surety for the faith- ful discharge of a duty; and it cannot be doubted, that, in proving the fact of a breach of the condition of such a bond, the confessions of the prinGipal, after his death, would be evidence. It would be difficult to 510 JANUARY TERM, 1827. 624 [Drummond v. Prestman.] ntisign a reason why his confessions should lose that character by in- creasing in their solemnity. We aj-e aware that tiiere are cases which have been thought to maintain principles inconsistent with these doctrines. They are chiefly collected together in the second volume of Mr. Metcalf's edition of Starhie's Treatise. on Evidence^ title Surety. We have examined those cases, and find some of them of very little authority, others inapplicable to the circumstances of the present case, and generally, in support of our opinion. The case of Davis et al. v. Shed et al. executors, 15 Mass. Rep. 6, has no application. It was a suit against the surety of an executor, by a creditor of the deceased, who had obtained judgment against the exe- cutor, *and received payments of interest upon the debt. The r^f-gt; question was, whether this precluded the surety from his plea <- of the act of limitations of that state, made in favour of executors. The court decided, that it did not preclude him. In that case, the record was pleaded in bar, and the decision given that it was not con- clusive. In the case of Respublica v. Davis, 3 Yeates, 128, an attempt ap- pears to have been made to introduce a record, for the purpose of prov- ing an admission of counsel in evidence; we cannot understand on what principle it was rejected ; but the suit being on a recognisance that one Cobbett should keep the peace, and the breach proposed to be established being the publication of a libel, parol evidence of the con- fession of Cobbett was admitted to prove against the surety, that he had published a libel. So that this authority would seem in favour of our dqctrine. So, in the Sherifls of London v. Tindall, 1 Esp. Cases, 394, which was a suit against the surety of a bailiff, a receipt endorsed on a war- rant, in the handwriting of the pirincipal, was admitted in evidence, which amounted to nothing less than a confession that the bailiff had received a sum of money, and ordered the prisoner discharged. It was objected, that the bailiff himself should be sworn, but the judge refused, and admitted the evidence, declaring, that the bailiff was, in fact, the defendant in the action. This would go far to prove, that even in William Prestman's life, the stated account would have been evidence against George; and the fact of a judgment being entered upon it by confession, could not have been immaterial to corroborate it. The case of Evans et al. v. Beatie, executors, 5 Esp. Cas. 26, seems contra; for there, in a suit against the guarantor of one Copper, for " any woollens that should be furnished him by plaintiff," evidence was offered to prove Copper's parol acknowledgment of certain goods delivered, but refused on the ground that he might be sworn, and it was not the best evidence the nature of the case would admit of. Here, it will be observed, that the principal was living; but we must not be thought to concur, without further consideration, in the doctrine that he could have been equally sworn for the one party, or compelled to give evidence for the other. With the surety he had a direct interest, and against the plaintiff it was equally direct. In the present case, the principal was dead. This case is loosely reported, and attributes some observations to lord Ellenborough, which we doubt much the authenticity of. 511 625 SUPREME COURT. [Drummond v. Prestman.] In the case of Higham v. Ridgway, 10 Easfs Rep. 122, the doctrine on these subjects is laid down with so much good sense as to speak its own correctness. It is to this effect, that the principle to be drawn *fi261 *^''°™ ^'' ^^^ cases is, that if a person have peculiar means of J knowing a fact, and make a declaration of that fact which is against his interest, it is clearly evidence after his death, if he could have been examined to it in his lifetime. On this principle it is, that entries in receivers' accounts are admitted ; so, also, an acknowledg- ment by a witness of a debt to another, or of an acquittance of a debt to himself; because the individual who makes the acknowledgment has no interest of his own to subserve, but does it to his own prejudice. In all such cases, however, the evidence is received with due caution, and its weight must rest with the jury. The most stubborn case on this subject that we have considered, is that of Beal v. Beck, reported in 3 Harris and M'Henry. This was debt upon a sheriff's bond, brought against a surety in Maryland. The same plaintiff had brought suit, and recovered judg- ment against the sheriff for the same cause of action, and the court refused to receive the record of that judgment in evidence as against the surety. In the inferior court it was rejected on a division of opinion, but in the court of the last resort, we are told, the judgment was affirmed. On this decision we can only remark, that the report of it is very brief and unsatisfactory; there is no argument of counsel, or other means of determining on what the decision turned. If the attempt was made to introduce the record as final and conclusive against the surety, it was properly rejected, and, in the absence of any thing to prove the con- trary, we cannot but suspect that such was the true import of that decision. In any other view, we should not feel satisfied lo recognise its authority. Judgment reversed, and a venire facias de novo awarded. # Guarantee. Action upon the following letter of guarantee, written by the defendants and delivered to the plaintiffs : " Our friend, Mr. Chester Haring, to assist him in business, may require your aid, from time to time, either by acceptance or endorsement of his paper, or advances in cash ; in order to save you from harm by so doing,, we do hereby bind ourselves, severally and jointly, to be responsible to you, at any time, for a sum not exceeding eight thousand dollars, should the said Chester Haring fail to do so." One count in the declaration was for money lent, and money had and received : held, that upon a collateral undertaking of this sort, no such suit it maintainable. Douglass v. Reynolds, 7 Peters, 113. Nothing can be clearer, upon principle, than that if a letter of credit is given, but in fact, no advances are made upon the faith of it ; the party is not entitled to recover for any debts due by him from the debtor in whose favour it was given which have been incurred subsequently to the guarantee, and without any reference to it. Ibid. The guarantee in this case covered successive advances, acceptances and endorsements made by the plaintifls, to the amount of eight thousand dollars at any subsequent times, toties quoties, whenever the antecedent transactions were discharged. It was a continuing guarantee. Jbid. _jj_,_ *Every instrument of this sort ought to receive a fair and reasonable interpretation, "•*"j according to the true import of its terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification, or liberal construc- tion, beyond the fair import of its terms. Ibid. The case of Russell v. Clarke's Executors, 7 Cranch'a Rep. 69, 2 Peters's Condensed Re- ports, 417, and Drummond v. Prestman, 12 Wheat. Rep. 515, cited. Ibid. A party giving a letter of guarantee has a right to know whether it is accepted, and whether the person to whom it ia addressed means to give credit on the footing of it or not. It may be roost material, not only as to his responsibility, but as to future rights and proceedings. It may 512 *( JANUARY TERM, 1827. 627 [Harcourt v. Gaillard.] regulate, in a great measure, his course of conduct and his exercise of vigilance in regard to tlie party iu whose favour it is given. Especially it is important in the case of a continuing gua- rantee, since it may guide his judgment in recaUing or suspending it. Ibid. If this had been the case of a guarantee limited to a single transaction, it would have been the duty of the plaintifls to have given notice of the advances, acceptances, or endorsements, made under it, within a reasonable time after they were made. But this being a continuing guarantee, in which the parties contemplate a series of transactions, and as soon as the defend- ants had received notice of the acceptance, they must necessarily have understood that there would be successive advances, acceptances, and endorsements, which would be renewed and discharged from time to time ; there is no general principle upon which to rest, that notice of each successive transaction, asit arose, should be given. All that could be required would be, that, when all the transactions under the guarantee were closed, notice of the amount for which the guarantors were responsible should, within a reasonable time afterwards, be communicated to them. Ibid. A demand of payment of the sum advanced under the guarantee should be made of the per- son to whom the same was made, and, in case of non-payment by him, notice of such demand and non-payment should have been given in a reasonable time to the guarantors, otherwise they would be discharged from the guarantee. By the very terms of this guarantee, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. A demand upon him, and a failure on his part to perform his engagements, are indispensable to constitute a casus foederis. The creditors are not bound to institute legal proceedings against the debtor, but they are bound to use reasonable diligence to make demand and to give notice of non-payment. Ibid. A letter of credit was written by Edmondston, of Charleston, South Carolina, to a commer- cial house at Havana, in favour of J. and T. Robson, for fifty thousand dollars, ■< which sum they may invest through you in the produce of your island." On the arrival of Thomas Rob- son in Havana, thb house to whom the letter of Mr. Edmondston was addressed was unable to undertake the business, and introduced Thomas Robsqn to Drake and Mitchel, merchants at that place, exhibiting to them the letter of credit fiom Mr. Edmondston. Drake and Mitchel, on the faith of the letter of credit, and at the request of Thomas Robson, made large shipments of coffee to Charleston, for which they were, by agreement with Thomas Robson, to draw upaH Goodhue and Co., of New Yprk, at sixty days, where insurance was to be made. Of this agreement Edmondston was informed, and he confirmed it in writing. For a part of the cost of the coffee so shipped, Drake and Mitchel drew bills on New York, which were paid ; and afterwards, in consequence of a change in the rate of exchange, they drew for the balance of the shipments on London. This was approved of by J. and T. Robson, but was not commu- nicated to Edmondston. To provide for the payment of the bills drawn on London by Drake and Mitchel, the agents of J. and T. Robson remitted bills on London, which were protested for non-payment ; and Drake and Mitchel claimed from Edmondston, under the letter *of credit, payment of their bills on London: held, that Mr. Edmondston was not rj^cno liable for the same. Edmoiidaton v. Drake and Mitchel, 5 Peters, 624. L "'"^ It would be an extraordinary departure from that exactness and precision which is an im- portant principle in the law and usage of merchants, if a merchant should act on a letter of credit, such as that in this case, and hold the writer responsible, without giving notice to him that he had acted upon it. Ibid. Beltv.Broum, 17 Peters, 161; 1 Howard, 169; Laun-ence v. M' Calmont, 2 Hoviiiti,ii6. Harcourt and others v, Gaillard and others. 12 Wheaton's Reports, 523. A GRANT made by the British governor of Florida, after the decla- ration of independence, within the territory lying between the Missis- sippi and the Chatahouchee rivers, and between the thirty-first degree of north latitude, and a line drawn from the mouth of the Yazoo river due east Jo the Chatahouchee, is invalid as the foundation of title in the courts of the United States. Vol. VI. — 65 513 628 SUPREME COURT. Henderson, Plaintiff in error, v. Poindexter's Lessee, Defendant in error. 13 Wheaton's Reports, 530. SPANISH grants, made after the treaty of peace of 1782 between the United States and Great Britain, within the territory east of the river Mississippi, and north of a line drawn from that river at the thirty- first degree of north latitude, east to the middle of the river Apalachi- cola, have no intrinsic validity, and the holders must depend for their titles exclusively on the laws of the United States. *fi2Ql *^^ Spanish grant, made while the country was wrongfully ■I occupied by Spain, can be valid, unless it was confirmed by the compact between the United States and the state of Georgia, of the 24th of April, 1802, or has been laid before the board of commissioners constituted by the act of congress of the 3d of March, 1803, ch. 340, and of March 27th, 1804, ch. 414. The Antelope, The Spanish and Portuguese Consuls, Claimants. 12 Wheaton's Reports, 546. Further explanation of the decree of this court, in S. C. 10 Wheat. Rep. 66, 6 Cond. Bep. 30, and 11 Wheat. Bep. 413, 6 Cond. Rep. 368. The Africans captured, except those restored to the Spanish .claimants, to be delivered to the United States, absolutely and unconditional!;, without the precedent payment of expenses. No judgment or decree can be rendered directly against the United States for costs and ex- penses. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. Decree of the circuit court, in respect to the apportionment among the several parties to the suit of the costs and expenses, affirmed. Identity of the Africans restored to the Spanish claimant established by sufficient evidence. THIS is the same cause which is reported in 10 Wheat, Rep. 66, 6 Cond. Rep. 30, and H Wheat. Rep. 413, 6 Cond. Rep. 368, and was again brought before the court upon a further appeal, and certificate of a division of opinions as to the proceedings of the court below in execution of the former decrees of this court. It was argued by the Attorney-General and Mr. Key, for the appel- lants ; and by Mr. Berrien, Mr. C. J. Ingersoll, and Mr. Wilde, for the respondents. Mr. Justice Teimble. delivered the opinion of the court. 514 JANUARY TERM, 1827. 630 [The Antelope.] *This case having been before this court, and a decree ren- r^con dered therein at February term, 1825, and again brought up, *■ and an explanatory decree made therein at February term,l826, the reports of the case in 10 Wheat. Rep. 66, 6 Cond. Rep. ZQ, and, 11 Wheat. Rep. 413, 6 Cond. Rep. 368, are referred to for the general history of its facts and circumstances, and for the principles settled in it by the former decrees of this court. The case was remanded to the circuit court, with directions to make a final disposition of the contro- versy between the parties, pursuant to the principles of the decrees of 1825 and 1826 of this court. The circuit court, in order to enable it to decree finally in the case, directed the registrar to take and report an account of the costs, and also the expenses of keeping, maintaining, &c. of the Africans, by the marshal, and which account was accordingly reported. Exceptions were filed to the report by both the Portuguese and Spanish claimants. The circuit court also caused proofs to be taken for the purpose of identifying individually the Africans to be delivered to the Spanish claimants, as directed by the decree of 1826. Thus circumstanced, the case came on for final hearing before the circuit court. The court decreed that the Portuguese claimant should not be made liable for costs, or any proportion of the expenses and charges of the marshal for maintaining, &c., the Africans ; and being of opinion that thirty-nine of the Africans were sufficiently identified by proof, as being the property of the Spanish claimants, directed the thirty-nine Africans, so identified, to be delivered to the Spanish claim- ants, upon their paying a proportion of the costs and expenses reported by the registrar, in the ratio of the number of Africans delivered, to the, ■whole number ; and the circuit court was further of opinion, that the residue of the Africans not directed to be delivered to the Spanish claimants, should be delivered to the United States, to be disposed of according to law; but, on the question whether they shall be delivere4 absolutely, or on condition of payment of the balance of the expenses which will remain unsatisfied after charging the Africans adjudged to the Spanish claimants in their due ratio, the judges of the circuit court being divided in opinion, ordered this difference of opinion to be certi- fied to this court. The case comes up on this certificate of division, and, also, upon an appeal prayed by the district attorney on behalf of the United States, and allowed, " from so much of the said final order of the circuit court, as relates to the apportionment among the several parties of the costs and expenses, in the preservation, maintenance, and custody, of the said Africans, and of the costs and expenses of the various proceedings which have been had in relation to the said Africans, and, also, from so *much of said order as decrees thirty-nine of the said Africans [■^/•oi to the Spanish claimants." '■ We will first consider the question arising upon the certificate of di- vision of opinion between the judges of the circuit court. It appears, from the opinion delivered by the circuit court, and from the registrar's report, that, in making up that report as to the amount of expenses, sixteen cents per diem was allowed the marshal for the custody, maintenance, &c., of the Africans ; and the Spanish claimants were charged, as a condition precedent, with the proportion of expenses 515 631 SUPREME COURT. [The Antelope.] of the marshal, after this rate, in the ratio of the number of Africans to be delivered to them. The residue of the marshal's expenses, at the same rate per diem, is supposed to be meant by the term " expenses," in the question on which the judges were opposed in opinion; and it is supposed the question upon which the judges were opposed in opinion was, whether the Africans not directed to be delivered to the Spanish claimants, should be delivered by the marshal to the United States, absolutely and unconditionally, to be disposed of according to law, or whether it should be imposed on the United States as a condition prece- dent to their delivery, that the United States should pay to the marshal his claim for expenses at the rate aforesaid, in the ratio of the number of Africans to be delivered to the United States. The Spanish claimants have not appealed from the decree of the circuit court. As the court had decided that they ought to bear some proportion of the expenses, it was necessary, for the purpose of ascer- taining the amount which they were to pay, to fix upon some data for making up the account of expenses so far as related to them. But as they do not complain, this court is not called upon to decide whe- ther they were overcharged or not, nor to determine whether the rate of sixteen cents per diem was warranted by law, as the circuit court supposed, so far as the Spanish claimants are concerned. ' ^ As relates to the United States, the question propounded by the judges of the circuit court, and upon which they were divided in opinion, does not necessarily draw in question the data or rate of the marshal's al- lowance for expenses ; but whether the payment of his expenses, at any rate, or to any amount, ought to be made a precedent condition to the delivery of the Africans to the United States. It may well be doubted, however, whether the state law does, as supposed by the court, authorize. the marshal to charge, as matter of right, sixteen cents per diem, for keeping, maintaining, &c., the Africans ; although it might furnish some guide, in an appeal to the sound discretion and justice of the government, in making him a reasonable compensation. It is true, the first section of the " act for providing compensation for the marshal," »fiWl *'^^^- ^' ^^' ^^^> 3^fter deiclaring the fees and compensation to be J allowed the marshal for certain enumerated services, &c., adds, "for all other services not herein enumerated, such fees or compensa- tion as are allo^ved in the supreme court of the state where the services are rendered." This has generally been construed, and, we think, rightly, to mean, that where the services performed are not enumerated in the act of congress, but such services are enumerated, and a fixed allowance made therefor in the state laws, they shall fix the rule of compensation. The case under consideration is wholly unprovided for by the laws and usages of the state. The Africans to be delivered to the United States are neither slaves in contemplation of law, nor pri- soners of war, nor persons charged with crimes. The compensations allowed by the laws of the state to sheriffs and jailers, in these cases, do not, therefore, furnish any positive rule of law or right, as to the compensation which ought to be allowed the marshal in the peculiar circumstances attending these Africans. He is, no doubt, entitled to a reasonable compensation ; but that must depend upon the circumstances of the case, and not any positive rule. But be that as it may, it could not legally enter into the judgment and decree of the court, so far as 516 JANUARY TERM, 1827. 632 [The Antelope.] that judgment or decree was to affect the rights of the United Slates, or the rights of the marshal as against the United States. It is a gene- ral rule, that no court can make a direct judgment or decree against the United States, for costs and expenses, in a suit to which the United States is party, either on behalf of any suitor, or any officer of the government. As to the officers of the government, the law expressly provides a different mode. The third section of the " act for regulating process," &c., vol. 2, ch. 137, makes provision for the fees and compensation to be allowed the marshal, similar to the " act for providing for compensation to marshals," &c., above cited. The fourth section makes some further regulations concerning the fees and compensation to be allowed clerks and marshals, and then provides, " that the same having been examined and certified by the court, or one of the judges of it, in which the services shall have been rendered, shall be passed in the usual manner at, and the amount thereof paid out of, the treasury of the United States," &c. These provisions show, we think, incontestably, that, whether the marshal's fees and compensation for services rendered the United States be fixed by some positive statutory rule, as in enumerated services, or depend upon what is reasonable and just under the circumstances of the case, as in non-enumerated services, they must be certified to, and paid out of, the treasury, and cannot lawfully constitute any part of the ♦judgment or decree in the cause. It would, indeed, be extraordi- nary, if the marshal, who is the servant of the government, and [*633 holds possession of the Africans merely by its authority, could obstruct the operations of the government by a claim for compensation for his services. The laws give the marshal no lien on the Africans, and we can discover no principle which will justify the court in creating a lien, in effect, by its decree. There is no necessity for such a proceeding. The seventh section of" an act in addition to the acts prohibiting.the slave trade," appropriates one hundred thousand dollars to carry the law into effect. The second section of the act authorizes the president of the United States to make such regulations and arrangements as he may deem expedient for the safe-keeping, support, and removal, beyond the limits of the United States, all such negroes," &c., vol. 5, ch. 511. It is not to be doubted, that if a reasonable account for expenses were certified according to law, that arrangements would be made to pay it out of the fund appropriated for carrying into effect the laws prohibit- ing the slave trade. We are of opinion it ought to be certified to the circuit court, that all the Africans captured in the Antelope, except those directed to be de- livered to the Spanish claimants, should be decreed to be delivered to the United States, absolutely and unconditionally, without the prece- dent payment of expenses. In that part of the case brought up by appeal, it is insisted on behalf of the United States, that so much of the decree of the circuit court " as relates to the apportionment among the several parties of the costs and expenses in the preservation, maintenance, and custody of the Africans, and the costs and expenses of the various proceedings which have been had in relation to said Africans," is erroneous. It is con- tended, that these costs and expenses were occasioned by the prosecu- 2T 517 633 SUPREME COURT. [The Antelope.] tion of a groundless claim by the Portuguese and Spanish claimants, and that they should have been decreed lo pay them* It may well be doubted whether these questions are now open to discussion. By a former order and decree of the circuit court, made before the former appeals, the ordinary costs and charges were regu- lated, and they were paid accordingly ; that order is not now before this court in this appeal. By the former decree of the circuit court, rendered before the former appeals, a principle was established as to the ratio in which the Spanish and Portuguese claimants should be charge- able with the expenses of maintenance, &c. The principle was, that they should be charged in the ratio of the number of Africans to be delivered to them respectively. There was no appeal from that part of the former decree of the circuit *6341 *^°"^t; or if there was, it was virtually affirmed by the former J decree of this court. In the application of the principle to the case as it now stands, it seems to follow, necessarily, that as none of the Africans are to be de- livered to the Portuguese claimant, he should pay none of the expenses of keeping them; and that the Spaniard should pay in the ratio of thirty-nine, the number to be delivered to him. The condition of the Portuguese consul, too, is very peculiar. Under the circumstances in which these Africans were captured, and brought into the United States, it was his duty to interpose a claim for part of them, on behalf of the subjects of his majesty the king of Portugal. That claim was sustained in the district and circuit courts, and fhe general propriety of the claim was also recognised by the former decree of this court, but as no individual Portuguese claimant of the property appeared before the hearing of the appeal, the claim of the vice-consul of Portugal was dismissed on that ground. It would be too much to visit him with the extraordinary expenses under such circumstances, and he has heretofore paid his proportion of the ordinary expenses of the suit. We think there is no just ground of complaint on the part of the United States, that the Spanish claimants have not been burdened with more than a rateable proportion of the expense of keeping the Africans. It only remains to be inquired, whether the circuit court erred in directing thirty-nine of the Africans to be delivered to the Spanish claimants. It has been argued, that there is no credible and competent evidence to identify them, or any of them. We are not of that opinion. We think, that under the peculiar and special circumstances of the case, the evidence of identity is competent, credible, and reasonably satisfactory, to identify the whole thirty-nine. It ought not to be forgotten, that in the original cause it had been established to the satisfaction of this court, that ninety-three of the Africans brought in with the Antelope, were the property of the Spanish claimants; but, as many of the Africans had died, it was the opinion of this court, that number should be reduced according to the whole number living. The circuit court, proceeding upon this princi- ple, fixed the whole number to which the Spanish claimants were enti- tled at fifty, and then proceeded to inquire as to their identity. Grondona, who had been examined as a witness in the original cause, was second officer on board the Antelope when the Spanish 518 JANUARY TERM, 1827. 634 [M'Lemore v. Powell.] Africans were purchased, and put on board the Antelope, on the coast of Africa. It appears, that the Africans captured, and brought in with the An- telope, *were put into the possession of Mr. William Richard- |-#f>oc son ; and that he had about fifty of them employed at work upon ^ the fortifications at Savannah ; that while there,. Grondona came out with the marshal for the purpose of identifying the Spanish Africans ; that the fifty Africans were drawn up in a line ; that Grondona made signs, and spoke to the negroes, and they to him, and they generally appeared to recognise him as an acquaintance. On cross-examination, he says, he cannot say that every one of the negroes recognised the sign made by the person accompanying the marshal to the fortifications, but that they generally did. The Africans of the Antelope being paraded in front of the court- house, Mr. Richardson was directed by the court to point out, and de- signate, individually, the Africans who had worked on the fortifications, and he designated thirty-four. It is proved by Mr. Morel, the marshal, that Grondona recognised five others, who were with other persons, and that they appeared to recognise Grondona as an acquaintance. These five are described by name, and pointed out by other witnesses. Before these proofs were taken in open court, for the purpose of iden- tifying the Africans claimed by the Spaniards, Grondona had disap- peared, and it is suggested was dead. He had, however, in his exami- nation as a witness in chief in the cause, shown, that he was an officer on board, and knew the Africans belonging to the Spanish claimants. Grondona, and the Africans, both spoke languages not understood by the witnesses; yet it could well be seen by them that Grondona and the Africans knew and understood each other ; and Mr. Richardson swears, that many of them appeared to know him very well, and that he claimed them as part of the Africans originally put on boai;d the Antelope by the Spanish owners. We think this evidence was sufficient, under the very peculiar cir- cumstances of this case, reasonably to satisfy the mind of the identity of thirty-nine of the Africans as belonging to the Spanish claimants. M'Lemore, Plaintiff in error, v. Powell and others, De- l*636 fendants in error. 2 Wheaton's Reports, 554. An agreement between the creditor and principal debtor for delay, or otherwise changing the nature of the contract to the prejudice of the surety, in order to discharge the latter, must be an agreement having a sufficient consideration, and binding in law upon the parties. [See note at the end of the case.] A mere agreement by the holder of a hill with the drawer for delay, without any consideration for it, and without any communication with or assent of the endorser, will not discharge' 519 636 SUPREME COURT. [M'Lemore v. Powell.] the latter, after he hfiAEi?E AL from the circuit court of Georgia. The controversy in this cause arose out of the following clauses in the will of James Daniel : "I lend my wife twenty-one negroes," naming them, and also certain lands, "during her natural life." And subse- quentlyj" I give and bequeath unto my granddaughter, Patsy Hend- rickj ,'tWee negroes, viz : Joe, Parker, and Willis — I also give her one- half/ofnthe negroes I have lent my wife, to her and her heirs for ever. I-i^'fei'iind bequeath , unto my grandson, Jesse Daniel Austin, son of Bettyr.Austin, one-half of the negroes I have lent my wife, after the deathoofmy wife, Nancy Daniel. Now my will is, that if either of my ^kndehildren, Patsy Hendrick, or Jesse Daniel Austin, should die with- oufcaJawful heir of their bodies, that the other should heir its estate." JessetBaniel Austin (now called by special act Jesse Austin Daniel) suiJvivBdjPatsy Hendrick; and after the death of Nancy Daniel, the widow of the testator, took into possession all the negroes bequeathed t'OtlTer d^iring her life. Patsy Hendrick died about the year 1805, in- tBstatei'i^nd without, heirs of her body, being at the time of her death attilnfawt about nine years old, leaving Robert Hendrick, her father, ait^'Ikmisa Hendrick, her half-sister, by the father's side, now Louisa ^ibbes, one of the complainants, her next of kin. Robert Hendrick (fedSin 1814, having first made his will, bequeathing his estate to the ssiri Louisa, his daughter, and his wife Mary, now Mary Williamson, atea a complainant. Some of the slaves, to wit, Sally and her children, •vf-ere born in the lifetime of Nancy Daniel. ( The court below determined that the limitation over was too remote, and decreed one-half the slaves to the representatives of Patsy Hend- rick, the complainants. It. also decreed that the slaves, Sally and her children, did. not belong to the estate of the tenant for life. The de- fendants appealed to this court. *fi^91 ^^' ^^'■'''6"' ^^^ ^^^ appellants ; Mr. Wilde, for the respond- " J ents. Cases cited : Fearne, 445, 471, 478, 482, 485. Free, in Ch. 15, 108. 1 P. Wms. 534, 663. 3 P. Wms. 253. 3 Johns. Rep. 289. 2 Mass. Rep. 56. 3 Atk. 396. 2 Term Rep. 720. 7 Term Rep. 585. 8 Ves. 11. 17 Ves. 479. Mr. Chief Justice Marshall delivered the opinion of the court. The first bequest to Patsy Hendrick would pass the slaves therein mentioned to her absolutely, were not this absolute estate qualified by the subsequent limitation over, if either of the testator's grandchildren, !^atsy, Hendrick, or Jesse Daniel Austin, should die without a lawful Heir of their bodies, that the other should heir its estate. We think these words convert the absolute estate previously given, into an estate tail ; and, if so, since slaves are personal property, the limitation over is too remote. There are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder over is to take effect whenever either of the immediate legatees should die with- out a lawful heir of his or her body. The gift in remainder is a gift, to the stock, and is limited over on a contingency too remote to be allowed by the policy of the law. The second point is, we believe, well settled. The issue is, we be 53a JANUARY TERM, 1827. 65S [Williamson v. Daniel.] - VCl lieve, universally considered as following the mother, unless they'bfe separated from each other by the t«rms of the instrument whicHii^^s]- poses of the mother. •■■-,,, fi Decree affirmed, with costs. .i, j-y,! Slaves. ^ •'''^' A verdict and judgment that the mother was born free, is not conclusive evidence of the freedom of her children, unless between the same parties or privies. Wood v. Davis et al., 7 Cranch, 371, 2 Cond. Rep. 484. ' If there be an estate for life in a female slave, and pending the estate she has children, they will go the remainderman. Preston v. M'Gaughy, 1 Cooke, 113. Five years' bona fide possession of slaves, constitutes a title by the laws of Virginia, upon which the possessor may recover in detinue ; and this title may be set up by the vendee of such possessor in the courts of Tennessee, as a defence to a suit brought by a third partr in those courts. Stielby v. Guy, II Wheat. 361, 6 Cond. Rep. 345. '' Under the Virginia statutes of 1757 and 1758, a parol gift of slaves, even where the pos- session passed between the years 1757 and 1787, was void or voidable. Ibid. The act of the legislature of Maryland, passed in 1796, ch. 47, sec. 13, declares "that all persons capable in law to make a valid will and testament, may grant freedom to, aha effect the manumission of any slave or slaves belonging to such person or persons, by his, ih^i<,iW their last will and testament, and such manumission of any slave or slaves may be i)iad£,to take effect at the death of the testator or testators, or at such other period as may be iliaiHilil in such last will and testament; provided always, that no manumission by last will and, testa- ment shall be effectual to give freedom to any slave or slaves, if the same shall be to the pi'eja- diceof creditors, nor unless the said slave or "slaves shall be under the age of forty- roioro five years, and able to work and gain a sufEcient maintenance and livelihood at the L ^"^ time the freedom given shall commence." The time of freedom of the appellee in this case, commenced when he was about eleven years old. Held, that his manumission by will was valid. Le Grand v. Damall, 3 Peters, 664. The court of appeals of Maryland, has decided that a devise of property, real or personal, by a master to his slave, entitles the slave to his freedom by necessary implication. This court entertains the same opinion. Ibid, , t The mother of Aspasia, a coloured woman, was born a slave at Kaskaskia, in Illinois, pre- vious to 1787, and before that country was conquered for Virginia. Aspasia was born in Illi- nois, subsequent to the passage of the ordinance for the government of that territory. Aspasia was afterwards sent as a slave to the state of Missouri. In Missouri, Aspasia claimed to be free, under the ordinance " for the government of the territory of the United States north-west of the river Ohio," passed 13th July, 1787. The supreme court of Missouri decided that Abasia was free, and Menard, who claimed her as his slave, brought this writ of error vmdfKtttt^ twenty-fifth section of the act of 1789, claiming to reverse the judgment of that couitrceela, that the case is not within thp provisions of the twenty-fifth section of the act of 1789. Mariard V. Aspasia, 5 Peters, 505. ' t'HtO'} The provisions of the compact which relate to "property," and to " rights," are :g#«SBMI. They refer to no specific property or class of rights: it is impossible, therefore, judi^^Jj^lp limit their application. If it were admitted that Aspasia is the property of the plamtiE,m error, and the court were to take jurisdiction of the cause under the provisions of the ordinance, must they not, on the same ground, interpose their jurisdiction in all other controversies re- specting property, which was acquired in the north-western territory. Ibid. Whatever right may be claimed to have originated under the ordinance of 1 ?87, it would seem that a right to the involuntary service of an individual could not have had its source in that instrument. It declares that " there shall not be slavery nor involuntary servitude in the territory." If this did not destroy a vested right in slaves, it at least did not create or strengthen that right. Ibid. If the decision of the supreme court of Missouri had been against Aspasia, it mig)it have i been contended that the revising power of this court, under the twenty-fifth section of the ju- diciary act, could be exercised. In such a case the decision would have been against the ex- press provision of the ordinance in favour of liberty ; and on that ground, if that instrument could be considered, under the circumstances, as an act of congress, within the twenty .fifth section, the jurisdiction of this court v^ould be unquestionable. But the decision WaB, not against, but in favour of the express provision of the ordinance. Ibid. ■ fO Ramsay v. Lee, 4 Cranch, 401, 2 Cond. Rep. 150 ; Scott v. Negro London, 3 Cranch',/a84, 1 Cond. Kep. 549 ; Brent v. Chapman, 5 Cranch, 358, 2 Cond. Rep. 279 ; Auldv. N before a return of a scire facias executed, or a second scire facias returned '■ nihil" against the bail. And this, in fact, constituted a part of the law of Ohio,.at the time the present recognisance was given ; the same having been so enacted by the legislature. This act of the legislature of Ohio, was in force at the time of the passage of the act of congress of the 19th of May, 1828, regulating the process of the courts of the United States, in the new states ; and must therefore be deemed as a part of the " modes of proceeding in suits," and to have been adopted by it ; so that the surrender of the principal within the time thus prescribed, is not a mere matter of favour of the codrt, but is strictly a matter of legal right, llnd. It is not strictly true, that on the return of " non est inventus" to a capias ad satisfaciendum against the principal, the bail is « fixed," in courts acting professedly under the common law, and independently of statute. So much are the proceedings against bail deemed a matter subject to the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered in cases b^ the indulgence of the court, by giving them time to render the principal until the appearance day of the last scire facias against them, as in cases of strict right. Ibid. When bail is entitled to be discharged, ex debito justitis, they may not only apply for an exoneretur by w^y of summary proceeding, but they may plead the matter as a bar to the sait, in their defence. But when the discharge is matter of indulgence only, the application is to the discretion of the court ; and an exoneretur cannot be insisted on, except by way of motion. JKd. When the party is, by the practice of the court, entitled to an exoneretur without a positive surrender of the principal, according to the terms of the recognisance ; he is, a fortiori, entitled to insist on it by way of defence, when he is entitled, ex debito justitis, to surrender the prin- cipal. Mid. The doctrine is fully established, that where the principal would be clearly entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exoneretur without any surrender. And, a fortiori, this doctrine will apply, when the law prohibits the paTty from being imprisoned at all, and where by the positive operation of law the surrender is prevented. Ibid. *662] *Scott and others. Appellants, v. Shreeve and others, Respondents. 12 Wheaton'a Reports, 605. Belief in equity against a judgment at law, upon certain bonds given for the indemnity of the obligee, as endorser of notes drawn by the obligor,, the consideration having failed. The assignee of such bonds takes them subject to all equities existing between the original parties. The plaintiff below is entitled to relief in equity, not having a complete and adequate remedy at law. APPEAL from the circuit court for the district of Columbia. Mr. Swann, for the appellants ; Mr. Taylor, for the respondents. Mr. Justice Thompson delivered the opinion of the court. This case comes up by appeal from the circuit court of the district of Columbia for the county of Alexandria. The object of the bill filed in the court below, was to obtain relief against a judgment at law re- covered against Shreeve, the appellee, upon certain bonds given by him 542 JANUARY TERM, 1827. 662 [Scott V. Shreeve.] to Elisha Janney, and which bonds had been assigned to the appellant, Scott, as his trustee, for the benefit of his creditors. In the progress of the cause, it was deemed necessary by the court, that the Bank of Potomack should be made a party defendant. A sup- plemental bill for that purpose was accordingly filed, and the bank made a party. The first inquiry that seems naturally to arise is, how the case stood as between Shreeve and Janney, the original parties to the bonds. The material facts upon which the complainant in the court below relied for relief, are not denied by the answer of Scott. From the bill and answer, and exhibits in the cause, accompanied by a written agreement between the solicitors of the parties, before the cause was set down for argument, the leading facts in the case appear to be, that some time in the year 1808, Shreeve failed in business, being indebted to the Bank of Potomack in the sum of six thousand three hundred dollars, upon a note discounted at the bank, and upon which Janney was the endorser ; for whose security Shreeve transferred to him, and John Roberts, who was also his endorser upon other notes, certain property at a valuation, but which, upon settlements of accounts between them, fell short of Jan- ney's responsibility to the bank upon his endorsement, one thousand *nine hundred and eighty dollars eighty-eight cents ; for which, r^A/.o by agreement between the parties, Shreeve gave to Janney five '- bonds, payable in five annual instalments, and Janney was to pay the note to the bank, upon which he was the endorser. The note, however, was continued running in the bank in its original form, Janney appear- ing responsible as endorser only. This note was renewed from time to time until the 19th of May, 1809, when, by the payments which had been made by Janney out of the property assigned by Shreeve, it was reduced to the sum of three thousand three hundred and six dollars ; and Janney himself having failed about this time, no further payments were made upon this note until the month of June, 1818, when Shreeve, after a long absence, returned to Alexandria, and was called upon by the bank for payment of his note, upon which he paid the sum of three thousand three hundred and fifty-five dollars twenty-nine cents, being the amount of principal and interest due upon the five bonds which he had given to Janney. Upon this brief statement of the facts as between Shreeve and Jan- ney, it will be seen, that Shreeve was exposed to a double responsibility for the same debt. He was liable on his note held by the bank, (unless the bank may be considered as having assented to the arrangement, and accepted Janney as solely responsible on the note, which will be hereafter considered,) and he was also liable to Janney on the bonds which he had given him. For the purpose of indemnifying Shreeve against his responsibility to the bank, Janney gave him the instrument bearing date the 1st of March, 1809, acknowledging that Shreeve had satisfied him by his bonds of the 28th of February, 1809, for all de- mands against him as security at bank, and for all other accounts, and that the note above referred to, although originally discounted for the use of Shreeve, was continued in his name, but for the convenience of him, Janney, and engaging to save Shreeve harmless from the said note, and in due time to take it up. An objection is here made to sustaining this bill in equity, because 543 663 SUPREME COURT. [Seott V. Slireeve.] there was a complete and adequate remedy at law. But this objection cannot be sustained. The bonds given by Shreeve to Janney were simply for the payment of money, and although the consideration for which they were given had failed by Janney's neglect to pay up the note in the Bank of Potomack according to his engagement, this could not have been set up at law as a defence in the suit upon the bonds ; nor could he, in that suit, have set off the amount paid to the bank upon his note. The engagement of Janney, on assuming the payment of the note to the bank, was a contract of indemnity only, and rested in damages, and could never form the subject of a set-off at law ; and *fifi4T although an *action at law might be maintained against Janney J upon this indemnity, it would be going too far, even if Janney was solvent, to say, that a court of equity could not interpose and stay a recovery upon the bonds, but that the party must be turned round to his remedy at law upon his indemnity. But, in the present case, it would be gross injustice, and a certain denial of all remedy, to refuse relief on this ground, Janney having become insolvent. There was, then, no defence at law which Shreeve could have set up against these bonds, nor had he any other remedy at law to which he was bound to resort. Was there, then, any defence which he could have set up against a suit upon his note if he had permitted the bank to prosecute him? None is perceived by the court. He stood upon the note as maker, and was liable to the bank as such ; and although, by the agreement be- tween him and Janney, the note was continued in that form for the convenience of Janney, yet the bank was. no party to that arrangement, and could not be bound by it. Even admitting the knowledge of that agreement by the bank, it certainly could not have been set up as a defence to the note, unless it could be shown, that there was an express or implied agreement to accept .Tanney as the debtor and to discharge Shreeve. It has been urged, however, on the part of the appellants, that the statute of limitations had run against the note, and that Shreeve might and ought to have availed himself of it. If the statute of limitations had run against this note, and might have been pleaded, we should be very unwilling to say that Shreeve was bound to plead it. It is a defence which a party may often avail him- self of with great justice and propriety. But whether he will or not must be left to his own election. It is, however, unnecessary to inquire into the duty or obligation of Shreeve to have pleaded the statute, under the circumstances of the case, because we do not think it could have been' set up as a defence to the action. The letter of license given by the bank to Shreeve beai-s date on the 12th January, 1809, and was for the term of seven years, which, of course, expired in January, 1816. It certainly cannot be pretended that the statute ran during the continuance of this letter of license. Payment of the note was demanded by the bank, and made by Shreeve, in June, 1818, about two years and five months after the expiration of the letter of licenscj a period much within the time necessary to bar the action. The next inquiry is, whether Scott, the assignee of Janney, has ac- quired any greater right or interest in these bonds than Janney himself 544 JANUARY TERM, 1827. 664 [Scolt V. Shreeve.] had. So far as relates to the question, whether the consideration had failed, the assignee stands precisely in the situation of the original *party. He took the bonds subject to all existing equities. This r^p^p^e. is the settled rule in chancery, and that which is recognised by ■- the laws of Virginia which are in force in Alexandria. Nor has any thing occurred, since the assignment, to give to Scott or the creditors of Janney any additional rights. These bonds were assigned. by Jan- ney as his own property, and for the benefit of his own creditors, which was a violation of the trust and. confidence reposed in him by Shreeve. They were given expressly, according to the agreement of the parties, to provide for the payment of the note to the Bank of Potomack ; and it is admitted that no part of this note has been paid out of the funds of Janney. The note had been reduced from six thousand three hun- dred dollars, to three thousand three hundred and six dollars, at the time Janney failed in the spring of 1809 ; but these payments were made out of Shreeve's funds, assigned by Janney to Roberts by the deed of the 11th of August, 1808. And it is also admitted that Scott, the assignee, has made no payments upon this note since the assign- ment to him. The creditors of Janney have, therefore, been deprived of none of his funds, nor can they have any right to claim the benefit of those bonds, which must be deemed to have been held by Janney in trust for the bank, and not as his own property. The only remaining inquiry is, whether the bank, by any express or implied agreement, accepted Janney as their debtor, and discharged Shreeve from his responsibility. The answer of the appellant, Scott, alleges, that Janney considered himself as having assumed the payment of the note in question, and that he was considered debtor to the bank for the same, and was solely relied upon by the bank for the payment of the note. That he believed the bank had full knowledge of the deed of the 11th of August, 1808, by which provision was made for the payment of the note, and were satisfied with it. And he further alleges, that the bank was so well satisfied with this provision, that it considered neither Janney nor Shreeve liable for it. If these allegations were supported by proof, they would go far, if not conclusively, to show that the bank had adopted Janney as solely re- sponsible for the note, and had discharged Shreeve. If so, the payment by Shreeve would be considered voluntary, and without any legal ob- ligation, and would form no objection to the recovery on the bonds. The bank, however, denies it was a party to the arrangement made by the deed of the 11th of August, 1808, or that it made any stipulation or agreement with Shreeve or Janney, in any manner connected with that deed, unless the order of the 12th of January, 1809, (the letter of license,) be considered as connected with it. The answer further de- nies, *that the bank ever did release, or agree to release, Shreeve, r^p.aa or that it ever did look solely to Janney, or the trust estate •- created by the deed of the llth of August, 1808. It admits, that when this deed was executed, Janney and Roberts were both directors of the bank, but avers, that no proposition in relation to it ever came before the board previous to the 12th of January, 1809, when the letter of license was granted to Shreeve, with the concurrence of Janney and Roberts, sitting and acting as directors of the bank. Vol. VI.— 69 2v2 545 666 SUPREME COURT. [Scott V. Shreeve.] The answer of Scott is not evidence against the bank, and his alle- gations with respect to the bank's having accepted Janney as the sole debtor for this note, are entirely unsupported by proofs, and must be ■ laid out of view, as they are positively denied by the answer of the bank, and which answer is strongly supported by the order for the let- ter of license, which was granted subsequent, to the arrangement be- tween Shreeve and Janney. For, if the bank had considered Shreeve exonerated from the payment of the note, there could have been no necessity for, or propriety in, giving him a letter of license. Indeed, it would have been absurd to give a letter of license to a man who was not a debtor to the bank. The order for this purpose is cautiously drawn, so as to retain the responsibility of both maker and endorser. The indulgence is granted expressly upon the condition that it is sanc- tioned by Janney, and without lessening the right of the bank against him. Nor is the bank chargeable with negligence that can in any manner prejudice its rights, or of which the appellant has any right to complain. The indulgence was granted with the concurrence of Janney, and un- der an impression, no doubt, by all parties, that the trust fund created by the deed of the 11th of August, 1808, would be sufficient to satisfy this note. And it was upon this supposition, no doubt, that the letter of license for seven years was granted to Shreeve, No steps would be taken against him until the expiration of that time, and demand of payment was made as soon thereafter as hfe returned to Alexandria. The utmost, then, that can be alleged against the bank is, that it had full knowledge of the provision made by the deed of the 11th of August, 1808, for the payment of this note. And admitting that pro- vision to have been amply sufficient, it would not bind the bank with- out its assent to resort to that fund alone, and discharge the parties to the note. The bank could have no objection to the provision made by that deed for the payment of the note, as it would add to its security if the maker and endorser were also held responsible. And the proceed- ings in relation to the letter of license are conclusive to show, that it was the understanding of all parties, that the bank had not, at that *fifiTI *^""®' relinquished its claims upon Janney and Shreeve for the J payment of the note. We are, accordingly, of opinion that the decree of the court below, granting a perpetual injunction against the appellant, and a dismission of the bill as to the bank, be affirmed, with costs. Peters's Digest, "Chancery." 546 JANUARY TERM, 1827. 667 Ramsay v. Allegre. 12 Wheaton's Reports, 6U. The court affirmed the decree of the circuit court on an appeal by a material-man who had filed a libel in personam in the admiralty side of the district court, to recover the amount of work done and materials furnished for a vessel bound on a foreign voyage, he having taken a promissory note for the amount of bis claim, which it did not appear by the record had been tendered to be given up. A LIBEL was filed in the district court of Maryland against the respondent and appellee, claiming a sum of money as due for work, labour, service, and materials, found at the special instance and request of the respondent, he being the ship's husband and consignee of the Dorothea, to equip and prepare her for a voyage on the high seas, amounting to two thousand four hundred and twenty-eight dollars eighty-four cents, and process prayed according to the course of the admiralty. The respondent filed a plea, alleging that he had given the libellant his negotiable note for the debt. For this note the libellant gave a receipt, " received a note at four months, which, when paid, will be in full." The district judge dismissed the libel on the ground that the jurisdiction of that court, as an instance court of admiralty, in the cause, was waived by the acceptance of the promissory note ; and the decree having been afBrmpd in the circuit court upon the same ground, the cause was brought by appeal to this court. The case was argued by the Attorney-General and Mr. Meredith, for the appellant ; and by Mr. Hoffman and Mr. Meyer, for the re- spondent. *Mr. Chief Justice Marshall delivered the opinion of the r^^c^o court: '^ That, as it did not appear by the record that the note had been ten- dered to be given up, or actually surrendered, at the hearing in the court below, the decree would be affirmed ; it not being necessary to consider the general question of jurisdiction. Mr. Justice Johnson concurred with the court in sustaining the decree below, but upon other grounds. 547 CONTENTS OF THE INDEX, AND THE NOTES. Abatement. Account. Account, cases as to the law of the action on an ; Notes. Admiralty. Admiralty jurisdiction. Admiralty jurisdiction, cases as to ; Notes. Admiralty practice. Alien ; Notes. Amendment. Amendment; Notes. Appeal. Assignment. Assignments by debtors for the benefit of creditors ; Notes. Assumpsit. Assumpsit, cases as to the law of the action of; Notes. Attachment. Attorney and counsellor at law. Attorney and counsellor at law ; Notes. Auditors in chancery. Auditors in chancery, practice of courts on the reports of; Notes. Award. Award, cases on arbitrament and ; Notes. Bail. Bail, cases on the law of; Notes. Bank-notes. Bank of the United States. Bills of exchange. Bills of exchange and promissory notes. Bills of exchange and promissory notes, as to the obligation of the holder of, to sue the drawer in order to charge the endorser; Notes. Bills of exchange and promissory notes ; appiication of the law of, to cases in which the United States are parties to the instrumefnt ; Notes. Bonds. Captors. Cases cited, and confirmed or overruled. Chancery and chancery practice. Chancery jurisdiction. Chancery jurisdiction of the courts of the United States ; Notes. City of Washington. Collector. Commission to vessels of war and priva- teers. Commission to vessels of war and priva- teers ; Notes. Constitutional law. Constitutionality of state laws. Constitutionality of state laws ; Notes. Construction of statutes. Construction of statutes, principles go- verning the ; Notes. Construction of the statutes of the states of the United States. Construction of the statutes of the states of the United States ; Notes. Consuls of foreign nations. Contract. Contracts founded on transactions in fraud of law; Notes. Corporation. Costs. , Marshal's fees. Court. Court, charge to the jury ; Notes. Covenant. Crimes. Damages and costs. Debtor and creditor. Declaration. Deed. Deeds, acknowledgment of; Notes, Demurrer. Demurrer; Notes. Devise. Divided court. Divided court ; Notes. Duties. Embargo. Error and writ of error. Error and writ of error ; Notes. Evidence. Fee-simple. Foreign ministers and consuls. Foreign ministers and consuls ; Notes. Forfeitures and penalties. Fraud. Guarantee. Guarantee, decisions on the law of; Notes. Husband and Wife. Indictment. „.„, (549) 550 CONTENTS OF INDEX AND NOTES. Injunction. Insolvent and bankrupt laws of the states of the United States. Insolvent and bankrupt laws of the states of the United States, cases as to the constitutionality of; Notes. Insurance. Insurance ; Notes. Jurisdiction. Jurisdiction of the supreme court of the United States, vrhen the construction of a clause in the constitution, or a statute of the United States, is drawn into question ; Notes. Jurisdiction ; Notes. Land titles in Maryland. Legacy. Lex loci. Lex loci, decisions in the courts of the United States upon the operation of the ; Notes. Lien. Limitation of actions. Limitation of actions, how far the ac- knovyledgment of a debt will pre- vent the operation of the statute of, and what will amount to a new pro- mise ; Notes. Limitation of actions. " Beyond sea." " Out of the state ;" Notes. Limitation of actions in equity cases. Limitation of actions in equity cases; Notes. Local law. Lottery. Lottery, cases decided relative to the law of; Notes. Mandamus. Mandamus, cases decided on the law of; Notes. Mandate. Marriage settlement. Maryland quit-rents. Mesne profits. Militia. Neutrality. Neutrality of the United States, cases on the construction of the act of con- gress of April 20, 1818, to prohibit violations of; Notes. Patents for lands. Patents for new and useful inventions. Payment. Piracy. Pleading. Post-office department and postmaster- general. Post-office department and postmaster- general, cases as to the ; Notes. Practice. Principal and surety. Principal and surety, cases on the law of; Notes. Priority of the United States. Priority of the United Stales, cases de- cided since the reports of Mr. Whea- ton; Notes. Prize. Probable cause of seizure. Probate of a will. Probate of a will, cases on ; Notes. Process. Promissory notes. Promissory notes, cases on the notice of non-payment of; Notes. Pubhc officers. Remission of penalties and forfeitures. Remission of penalties and forfeitures by the secretary of the treasury ; Notes Revolt. Revolt; Notes. Salvage. Seamen's wages. Seizure. Slaves ; Notes. Slave trade. Spanish land grants. Statutes of Georgia. Statutes of Kentucky. Statutes of Louisiana. Statutes of Maryland. Statutes of Rhode Island. Statutes of Tennessee. Supreme court of the United States. Supreme court of the United States, cases as to the jurisdiction of, when the construction of a clause in the constitution, or a statute of the United States, is drawn in question ; Notes Surety. Tender and refusal. Tender and refusal, cases on the law of • Notes. Titles to lands. Treaties. Treaties ; Notes. Usury. Usury, cases decided on the law of; Notes. Variance. Variance in pleading ; Notes. Vendor and purchaser. Visitation and search. Voluntary conveyances. Voluntary conveyances, fraudulent as to creditors ; Notes. Warranty. Wills. INDEX THE PRINCIPAL MATTERS. ABATEMENT. 1. Variances between the writ and declaration cannot be taken advantage of in tlie court below, after plea pleaded. [See note at the end of the case.] Chirac v. Reintcker, 310.— 11 Wheaton, 280. 2. QuEere, Whether by the modern practice such variances can be taken advantage of at all. Ibid. 3. Marriage of the plainli£r pendente lite does not of itself abate the suit. The objection can only be made available by plea in abatement. Jbid. ACCOUNT. 1. A settled account is only prima facie evidence of its correctness, at law or in equity; it may be impeached by proof of fraud, or omission, or mistake ; and if it be confined to particular items of account, concludes nothing as to other items not stated in it. [See note at the end of the case.] Perkins v. Hart, 287. — 11 Wheaton, 237. 2. If to a bill for an account, the defendant plead, or in his answer, rely upon a settled ac- count, the plaintiff may surcharge, by alleging and proving omissions in the account, or may falsify by showing errors in some of the items stated in it. Ibid. 3. The rule is the same in principle at law ; a settled account is only prima facie evidence of its correctness : it may be impeached by proof of unfairness or mistakes in law or fact; and if it be confined to particular items of account, it concludes nothing in re- lation to other items not stated in it. Ibid. 4. Notes of cases as to the law of the action on an account, 297. ADMIRALTY. 1. Although a consul may claim, in the admiralty, for subjects unknown of his nation, yet restitution cannot be decreed without specific proof of the individual proprietary inter- est. The Antelope, 30. — 10 Wheaton, 66. 2. In order to constitute a valid seizure, so as to entitle the party to the proceeds of a forfeit- ure, there must be an open, visible possession claimed, and authority exercised under the seizure. The Josefa Segunda, 111. — 10 Wheaton, 312. 3. A seizure, once voluntarily abandoned, loses its validity. Ibid. i, A seizure, not followed by an actual prosecution, or by a claim, in the district court, before a hearing on the merits, insisting on the benefit of the seizure, becomes a nullity. Ibid. 5. Qutere, How far the state legislatures may authorize the condemnation of vessels as nnseaworthy, by tribunals or boards constituted under state authority, in the absence . of any general regulation made by congress, under its power of regulating commerce, or as a branch of the admiralty jurisdiction 1 Janney v. The Columbian Insurance Company, 166. — 10 Wheaton, 411. 6. The district court has not jurisdiction of a suit for wages earned on a voyage, in a steam- vessel, from Shippingport, in the state of Kentucky, up the river Missouri, and back again to the port of departure, as a cause of admiralty and maritime jurisdiction. [See note at the end of the case.] The Steamboat Thomas Jefferson, 173. — 10 Wheaton, 428. 551 552 INDEX. ADMIRALTY. 7. The admiralty has no jurisdiction over contracts for the hire of seamen, except in cases where the service is substantially performed upon the sea, or upon waters within the ebb and flow of the tide. Ibid. 8. But the jurisdiction exists, although the commencement or termination of the voyage is at some place beyond the reach of the tide. I is sufficient, if the service is essentially a maritime service. Ibid. 9. Qusere, Whether, under the power to regulate commerce among the several states, con- gress may not extend the remedy, by the summary process of the admiralty, to the case of voyages on the western waters ? Ibid. 10. However this may be, the act of 1790, c. 29, for the government and regulation of sea- men in the merchant service, confines the remedy in the district courts to such cases as ordinarily belong to the admiralty jurisdiction. Ibid. 21. The courts of the United States, proceeding as courts of admiralty and maritime juris- diction, have jurisdiction in cases of maritime torts, in personam, as well as in rem. Manro v. Almeida, 190.— 10 Wheaton, 473. 12. The courts of the United States, proceeding as courts of admiralty and maritime juris- diction, may issue the process of attachment to compel appearance, both in cases of maritime torts and contracts. Ibid. 13. In admiralty proceedings, amendments are made in the appellate court, not only as to form, but as to matter of substance, as by the filing a new count to the libel ; the parties being permitted, whenever public justice, and the substantial merits require it, to intio- duce new allegations and new proofs ; non allegata allegare, et non probata probare. The Marianna Flora, 201.— 11 Wheaton, 1. 14. If the amendment is made in the circuit court, the cause is heard and adjudicated by that court, and (upon appeal) by this court on the new allegation ; but if the amendment is allowed by this court, the cause is remanded to the circuit court, with directions to permit the amendment to be made. [See note at the end of the case.] Ibid. 15. Rights and duties of armed, and other ships, navigating the ocean in time of peace. Md. 16. An attack made upon a vessel of the United States, by an armed vessel, with the avowed intention of repelling the approach of the former, or of crippling or destroying her, upon a mistaken supposition that she was a piratical cruiser, and without a piratical or felo- nious intent, or for the purpose of wanton plunder, or malicious destruction of pro- perty, is not a piratical aggression under the act of the 3d of March 1819, c. 75. 17. Nor is an armed vessel captured under such circumstances, liable to confiscation as for a hostile aggression under the general law of nations. Ibid. 18. The act extends to foreign vessels committing a piratical aggression ; and whatever responsibility the nation may incur towards foreign states, by executing its provisions, the tribunals of the United States are bound to carry them into eSect. Ibid. 19. Pirates may be lawfully captured by the public or private ships of any ;iation, in peace or in war ; for they are hostes humani generis. Ibid. 20. American ships offending against our own laws, may be seized upon the ocean, and for- eign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. Ibid. 31, But in such cases the party seizes at bis peril, and is liable to costs and damages if he fails to establish the forfeiture. Ibid. 22. Ships of war sailing under the authority of their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real charac- ters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. Ibid. 23. No vessel is bound to await the approach of armed ships under such circumstances ; but such vessel cannot lawfully prevent their approach by the use of force, upon the mere ^ suspicion of danger. Ibid. 24. Where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offending vessel. Ibid. 26. How far the act of the master binds the owner of the vessel. Ibid. 27. Construction of statutes. ADMIRALTY JURISDICTION. Notes of cases as to admiralty jurisdiction, 174. INDEX. 553 ADMIRALTY PRACTICE. 1. After a general decree of restitution in this court, the captors, or purchasers under them, cannot set up in the court below new claims for equitable deductions, meliorations, and charges, even if such claims might have been allowed, had they been asserted before the original decree. The Santa Maria, 176. — 10 Wheaton, 431. 2. Nor can the claimants, or original owners, in such a case, set up a claim for interest upon the stipulation taken in the usual form, for the appraised value of the goods, in- terest not being mentioned in the stipulation itself. Ibid. 3. Nor can interest be decreed against the captors personally, by way of damages for the detention and delay, no such claim having been set up, upon the original hearing in the court below, or upon the original appeal to this court. Ibid. 4. The case of Rose v. Himely, 5 Cranch, 313, 2 Cond. Sep. 266, reviewed, explained and confirmed. Ibid. 5. Upon a mandate to the circuit court, to carry into effect a general decree of restitution by this court, where the property has been delivered upon a stipulation for the appraised value, and the duties paid upon it by the parties to whom it is delivered, the amount of the duties is to be deducted from the appraised value. Ibid. 6. Under the process act of 1792, c. 137, s, 2, the proceedings in cases of admiralty and maritime jurisdiction in the courts of the United States, are to be according to the modified admiralty practice in our own country engrafted upon the British practice; and it is not a sufficient reason for rejecting a particular process, which has been con- stantly used in the admiralty courts of this country, that it has fallen into desuetude in England. Manro v Almeida, 190. — 10 Wheaton, 473. 7. The process by attachment may issue, wherever the defendant has concealed himself or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty. Ibid. S. It may issue against his goods and chattels, and against his credits and effects in the hands of third persons. Ibid. 9. The remedy by attachment in the admiralty, in maritime cases, applies even where the same goods are liable to the process of foreign attachment, issuing from the courts of common law. Ibid. 10. It applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence. Ibid. 11. In a case of default the property attached may be condemned to answer the demand of the libellant. Ibid. 12. It is not necessary that the property to be attached should be specified in the libel. Ibid. 13. It seems that an attachment cannot issue without an express order of the judge, but it may be issued simultaneously with the monition ; and where the attachment issued in this manner, and in pursuance of the prayer of the libel, this court will presume that it was regularly issued. Ibid. 14. General rule as to libels in rem. [See note at the end of the case.] The Palmyra, 397. —12 Wheaton, 1. 15. How far the strict rules of the common law, as to pleading in criminal cases, arc appli- cable to informations in rem. Ibid. 16. How far a previous prosecution in personam is necessary to found the proceeding in rem. Ibid. 17. The lien for duties, under the impost laws, cannot, in any case, be enfoK'ed by a libel of information in the admiralty ; the revenue jurisdiction of the district courts, proceed- ing in rem, only extending to cases of seizures for forfeitures under laws of impost, navigation, or trade of the United States. United States v. Three Hundred and Fifty Chests of Tea, 593.— 12 Wheaton, 486. 18. But a suit at common law may be instituted .in the district or circuit courts, in the name of the United States, founded upon their legal right to recover the possession of goods upon which they have a lien for duties, or to recover damages for the illegal taking or detaining the same. Ibid. 19. Amendment. ALIEN. 1. The treaty of 1778, between the United States and France, allowed the citizens of either country to hold lands in the other; and the title, once vested in a French subject, to hold lands in the United States, vvas not devested by the abrogation of that treaty, and the expiration of the subsequent convention of ISOO. [See note at the end of the case.] Carneal V. Banks, 6i. — 10 Wheaton, 181. 2. An alien may take real property, by grant, whether from the state or an inilivi4ui*l, smi Vol. VI.— 70 3W 554 INDEX. ALIEN. may hold the same until his title is devested by an inquest of office, or some equivalent proceeding. Governeur's Heirs y. Robertson, SSi. — 11 Wheaton, 332. 3. Examination of the authorities upon the question, whether a grant of lands to an alien, by the state, is absolutely void. Ibid. 4. The act of Assembly of Virginia of 1779, c. 13, s. 3, secured from escheat all the interest acquired by aliens in real property, previous to the issuing of the patent, and left the rights acquired by them under the patent, to be determined by the general principles of the common law. Mid. 5. The title of an alien thus acquired by patent in 1784, under the laws of Virginia, and subsequently confirmed to him by a legislative act of Kentucky, in 1796, and to his heirs, and their grantees, by an act of the same state in 1799, will overreach a grant made by Virginia to a citizen in 1785, and defeat the claim of all persons holding under such grant. Ibid. 6. These legislative acts were valid, under the compact of 1789, between the states of Virginia and Kentucky. Ibid. 7. Notes, 318. AMENDMENT. 1. In admiralty proceedings, amendments are made in the appellate court, not only as to form, but as to matter of substance, as by the filing a new count to the libel ; the parties being permitted, whenever public justice and the substantial merits require it, to introduce new allegations and new proofs; non allegata allegare, et non probata probare. The Marianna Flora, 201.— 11 Wheaton, 1. 2. If the amendment is made in the circuit court, the cause is heard and adjudicated by that court, and (upon appeal) by this court on the new allegation ; but if the amendment i» allowed by this court, the cause is remanded to the circuit court, with directions to permit the amendment to be made. [See note at the end of the case.] Ibid. 3. Amendments to the pleadings are matters in the discretion of the court below. Error will not lie to this court, on the allowance or refusal of such amendments. Chirac v.. Eeinicker, 3l0.~ll Vi^heaton, 280. 4. Notes of cases, 215, APPEAL. 1. Upon an appeal from a mandate to carry into eifect a former decree of the court, nothing^ is before the court but the proceedings subsequent to the mandate. The Santa Maria,. 176.— 10 Wheaton, 431. 3. But the original proceedings are always before the court, so far as is necessary to determine any new points in controversy between the parties, which are not terminated by the original decree. Ibid, 3. An appeal under the judiciary acts of 1789, ch. 20, s. 22, and of 1803, oh. 353, prayed for, and allowed within five years, is valid, although the security was not given until' after the lapse of five years. The Dos Hermanos, 109. — 10 Wheaton, 306. 4, The mode of taking the security, and the time for perfecting it, are within the discretion of the court below, and this court will not Interfere with the exercise of that discretion. Ibid. ASSIGNMENT. 1. A debtor has a right to prefer one creditor to another in payment; and it is no objection to the validity of an assignment for that purpose, that it was made by the grantor, and' received by t)ie grantee, as trustee, in the hope ai>d expectation, and with a view of preventing prosecution for a felony connected with his transactions with his creditors ; if the preferred creditors have done nothing to excite that hope, and the assignment was made without their knowledge or concurrence at the time of its execution, and without a knowledge of the motives which influenced the assignor, or was not after- wards assented to by them under some engagement express or implied to suppress or forbear the prosecution. [See note at the end of the case.] Brooks v. Marbury, 223, —11 Wheaton, 78. 2. An assignment for the benefit of preferred creditors is valid, although their assent is not given at the time of its execution, if they subsequently assent in terms, or by actually receiving the benefit of it Ibid. 3. It is no objection to such an assignment, that it defeats all other creditors of their legal remedies, even if amounting to a majority in number and value, unless there be somo express pxayigioB, of a, banJuupt I&w'to. iavaUJate the deed. Ibid. INDEX. 555 ASSIGNMENT. 4. Quaere, How iar, and under what circumstances, the possession of the property assigned to trustees for the benefit of creditors, continuing in the grantor, will invalidate the assignment. [See note at the end of the case.] Ibid, 5. It seems that a bona fide assignment, for a valuable consideration, made by a husband, of a debt actually and presently due to his wife, devests, in equity, the title of the wife. Cassellv. Carroll, 249.— 11 Wheaton, 134. 6. But however this may be in general, the agreement made in 1780, including the quit rents then actually due (if at aip to Louisa Browning, the daughter of Charles lord Baltimore, and assigning them to Henry Harford, the devisee of Frederick lord Baltimore, . having been entered into in England, by the husband of Louisa Browning and her committee (she being a lunatic), and the consideration having actually gone benefici- ally for her use; and the whole transaction having been between British subjects, under the direction of the high court of chancery, and confirmed by an act of parlia- ment, transferred a complete legal and equitable title to the assignee. Ibid. 7. Asssignments by debtors for the benefit of creditors. Notes of cases, 334. ASSUMPSIT. Notes of cases as to the law of the action of assumpsit, 296. ATTACHMENT. Admiralty. ATTORNEY AND COUNSELLOR AT LAW.' 1. A counsel or attorney is not a competent witness to testify as to facts communicated to either by his client, in the course of the relation subsisting between them, but may be examined as to the mere fact of the existence of that relation. Chirac v. Reinicker, 310 11 Wheaton, 280. 2. Confidential communications between client and attorney are not to be revealed at any time. The privilege is not that of the attorney, but of the client, and it is indispensa- ble for the purposes of private justice. [See note at the end of the case.] Ibid. 3. Whatever facts, therefore, are communicated by a client to a counsel solely on account of that relation, such counsel are not at liberty, even if they wish, to disclose, and their testimony is incompetent. IKd. 4. A counsel may however be asked, and in answering the question his testimony is competent, whether he bad been retained by the party as counsel or attorney ; but he cannot be asked in what capacity he was so retained, or what claim or title he was employed to maintain. Ibid. 5. Notes, 318. AUDITORS IN CHANCERY. Practice of courts of chancery on the reports of auditors. Notes of cases, 248. AWARD. 1. An award must decide the whole matter submitted to the arbitrators ; it must not extend to any matter not comprehended in the submission ; and it must be certain, final, and conclusive of the whole matter referred. [See note at the end of the case.] Camo- ehan v. Christie, 382.— 11 Wheaton, 446. 2. Where the arbitrators determined that the plaintiffs should be entitled to a credit of a certain sum on account of sales of land to the defendant, provided " they shall grant, or cause to be granted, to the said W. C. (the defendant) a clear, unencumbered and satisfactory title" to the lands, without limiting any time within which the title should be made : held, that the award was void, as not being final and conclusive. Ibid. 3. A court of equity either enforces an award as it is made, or sets it aside if in any respect defective ; but it is contrary to its practice to confirm the award so far as it extends, and to supply omissions by decree of the court. Ibid. 4. Notes of cases on'arbitrament and award, 394. BAIL. 1. The bail is fixed by the death of the principal after the return of the ca. sa. and before the return of the scire facias ; and the bail is not entitled to an exoneretur in such a case. [See note at the end of the case.] Davidson v. Tdykr, 660. — 12 Wheaton, 604. 5. Notes of cases on the law of bail, 660. 556 INDEX. BANK NOTES. 1. In general, a payment received in forged paper, or in any base coin, is not good ; and if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon his original demand. Bank of the United States v. The Bank of Georgia, i,30.— 10 Wheaton, 333. 2. Bat this principle does not apply to a payment made bona fide to a bank, in its own notes, which are received as cash, and afterwards discovered to be forged. Ibid. 3. Effect of acceptances, where the handwriting of the drawer has been forged. Ibid. 4. Bank notes are part of the currency of the country ; they pass as money ; and are a good tender, unless specially objected to. [See note at the end of the case.] Ibid. 5. In case of such payment upon general account, an action may be maintained by the party paying the notes, if there is a balance due him from the bank upon their general account, either upon an insimul computassent, or as for money had and received. Ibid. BANK OF THE UNITED STATES. 1. In a suit brought by the president, directors and company of the Bank of the United Slates, upon a bond given to the bank to secure the faithful performance of the otHcial duties of one of its cashiers, evidence of the execution of the bond, and of its approval by the board of directors, (according to the rules and regulations contained in the charter of the bank) is admissible, notwithstanding there was no record of such appro- val; and the plaintiff may prove the fact of such approval by the board, by presumptive evidence, in the same manner as such fact might be proved in the case of private persons, not acting as a corporation, or as the agents of a corporation. Bank of the United States v. Dandridge, 440. — 12 Wheaton, 64. i. Where, in such a case, the cashier is duly appointed, and permitted to act in his office, for a long time, under the sanction of the directors, it is not necessary that his official bond should be accepted by the board of directors as satisfactory, according to the terms of the charter, in order to enable him to enter legally on the duties of his office, or to make his sureties responsible for the non-performance of those duties. The charter and the by-laws are to be considered, in this respect, as directory to the board, and not as conditions precedent. Ibid. 3, Nature of the corporation of the Bank of the United States. Ibid. BILLS OF EXCHANGE. Effect of acceptance when the handwriting of the drawer has been forged. Bank of the United States v. The Bank of Georgia, 120.— 11 Wheaton, 333. BILLS OF EXCHANGE AND PROMISSORY NOTES. 1. It seems, that, as against the maker of a promissory note, or against the acceptor of « bill of exchange, payable at a particular place, no averment in the declaration, or proof at the trial, of a demand of payment at the place designated, is necessary. [See note at the end of the case.] Bank of the United States v. Smith, 257. — 11 Wheaton, 171. 2. But, as against the endorser of a bill or note, such an averment and proof is, in general, necessary. Ibid. 3. Where the bill or note is made payable at a particular bank, and the bank itself is the holder, such averment and proof may be dispensed with ; and all that is necessary, is for the bank to examine the account of the maker, with them, in order to ascertain whether he has any funds in their hands. Ibid. 4. No precise form of notice to the endorser of a promissory note is necessary ; and it is not necessary to state, in the notice, who is the holder; nor will a mistake as to the date of the note vitiate the notice, if it conveys to the party a sufficient knowledge of the particular note which has been dishonoured. Mills v. The Bank' of the United States, 373.— 11 Wheaton, 431. 5. It is not necessary that the notice should contain a formal allegation, that it was demanded at the place where payable. It is sufficient that it states the fact of non-payment of the note, and that the holder looks to the endorser for indemnity. Ibid. 6. By the general law, demand of payment of a bill or note must be made on the third day of grace ; but, where a note is made for the purpose of being negotiated at a bank, whose custom is to demand payment, and give notice on the fourth day, that custom forms a part of the law of the contract ; and it is not necessary that a personal know- ledge of the usage should be brought home to the endorser for that purpose. Ibid. I The general rule of law, requiring proof of the title of the holders of a note, may be INDEX. 557 BILLS OF EXCHANGE AND PROMISSORY NOTES. modified by a rule of court, dispensing with proof of the execution uf the note, unless the party shall annex to his plea an affidavit that the note was not executed by him. Ibid. 8. An unconditional promise, by the endorser of a bill or note, to pay it, or the acknowledg- ment of his liability, after knowledge of his discharge from his responsibility by the laches of the holder, amounted to an implied waiver of due notice of a demand from the drawee, acceptor, or maker. Titomton v. Wynn, 508. — 12 Wheaton, 183, 9. So an acknowledgment of the drawer's or endorser's liability has the same effect. Ibid. 10. Knowledge of the fact of the laches of the holder is essential to charge the, endorser upon his promise or acknowledgment. Ibid. 1 1. Wherever the government of the United Slates, through its lawfully authorized agents, becomes the holder of a bill of exchange, it is bound to use the same diligence, in order to charge the endorsers, as in a transaction between' private individuals, [See note at the end of the case,] United States v. Barker, 641, — 12 Wheaton, 559, 12. Where the United States were the holders of certain bills of exchange, and their agent in New York was directed, by a letter from the secretary of the treasury, dated Wash- ington, December 7th, 1814, to give notice of non-acceptance to the drawer and en- dorsers, residing in New York, and notice was given to the endorser on the 12th of the same month, the mail which left the 8th having arrived at New York at thirty-five minutes past ten o'clock. A, M,, on the 10th : held, that the endorser was discharged by the negligence of the holders. Ibid. 13. So, also, where the United States were the holders of other bills, and their agent in New York was directed, by a letter from the secretary of the treasury, dated Washing- ton, May 8th, 1815, to give notice of non-payment to the drawer and endorsers residing in New York and notice was given to the endorser on the 12th of the same month, the mail which left Washington on the 8th having reached New York early on the morning of the 1 1th : held, that the endorser was discharged by the negligence of ^the holders. Ibid. 14. As to the obligation of the holder of a promissory note, to sue the drawer in order to charge the endorser. Notes, 639, 15. Application of the law of bills of exchange to cases in which the United States are par- ties to the instrument. Notes of cases, 643. BONDS, 1, A, W, M'G, gave a bond to the Bank of the United States, with sureties, conditioned for the faithful performance of the duties of the office of cashier of one of the offices of discount and deposit during the term he should hold that office. The president and directors of the bank having discovered that he had been guilty ol a gross breach of trust, parsed a resolution at Philadelphia, on the 27th of October, 1820, " that A, W. M'Gr. cashier, &c,, be, and he is hereby suspended from office, till the further pleasure of the board be known :" and another resolution, " that the president of the office at Middletown be authorized and requested to receive into his care, from A, W, M'G,, the cashier, the cash, bills discounted, books, papers, and other property in said office, and to take such measures for having the duties of cashier discharged, as he may deem ex- pedient," These resolutions were immediately transmitted by mail to the president of the office at Middletown, who received them on the morning of Sunday, the 29th of the same month, but did not communicate them to the cashier, nor carry them into effect, until the afternoon of the SOth, between four and five o'clock : held, that the sureties continued liable for his defaults until that time, MGill v. The Bank of the United States, 617 12 Wheaton, 511. 2, On such a bond, the recovery against the sureties is limited to the penalty, [See note at the end of the case.] Ibid. 3. Partial payments having been made by the sureties, (subject to all questions,) the applica- tion of these payments was made by deducting. them from the penalty of the bond, and allowing interest on the balance thus resulting from the commencement of the suit, there having been no previous demand of the penalty, or acknowledgment that the whole was due. Ibid. 4. But interest was refused to the sureties on the payments, [See note at the end of the case,] Ibid. CAPTORS. Prize. 2w2 558 INDEX. CASES CITED, AND CONFIRMED OR OVERRULED. 1. The case of Rose v. Himely, 5 Cranch, 313, 2 Cond. Rep. 266, reviewed, explained, and conermed. The Santa Maria, 176.— 10 Wheaton, 431. 2. The case of Palmer v. Allen, 7 Cranch, 550, 2 Cond. Rep. 607, reviewed and reconciled with the present decision. Waymam v. Southard, 1. — 10 Wheaton, 1. 3. The Louis, 1 Dods. Rep. 210. Right of search in time of peace. Damages for illegal seizure. The Marianna Flora, 201. — 10 Wheat. 1. 4. Smith V. The Bank of Scotland, 1 Dow's Pari. Rep. 294. Fraud and concealment in contracts. Etting v. The Bank of the United States, 216. — 11 Wheaton, 59. 5. Hamilton v. Russell, 1 Cranch's Rep. 310, 1 Cond. Rep. 318. Possession accompany- ing a deed of conveyance. Brooks v. Marbwry, 233. — 1 1 Wheaton, 78. 6. Hildreth v. Sands, 2 Johns. Ch. Rep. 36. Fraudulent deed. Ibid. 7. Deed obtained by imposition and fraud. Ibid. 8. Lamb v. Milnes, 5 Ves. .'517; Mitford v. Mitford, 9 Ves. 87; Hornby v. Lee, 2 Mad. Rep. 16. Assignment by the husband of chose in action belonging to the wife. Cas- selly. Carroll, 249.— 11 Wheaton, 134. 9. Cort V. Birbeck, Dongl. 208. Demurrer to evidence. Bank of the United States v. Smith, 257.-11 Wheaton, 171. 10. Rowe v. Young, 2 Brod. and Bingh. 165. Averment of demand of payment of a bill or note at the place designated. Ibid. 1 1. Saunderson v. Judge, 2 H. Bl. 609. Averment and proof of demand of payment at the place designated dispensed with, where a bill Or note is made payable at a bank, and the bank is the holder. Ibid. 12. United States v. Kirkpatrick, 9 Wheat. Bep. 720, 5 Cond. Rep. 733. Discharge of surety by laches. United States v. Vanzandt, 264. — 11 Wheaton, 184. 13. Sexton v. Wheaton, 8 Wheat. Rep. 229, 5 Cond. Rep. 419. A voluntary deed fraud- ulent as to antecedent creditors. Hinde v. hangworth, 270. — 11 Wheaton, 199. 14. Faikney v. Reynous, 4 Burr. Hep. 2069 ; Petrie v. Hannay, 3 Term Rep. 418 ; Farmer V. Russell, 1 Bos. and Pull. 295 ; Steers v. Laishly, 6 Term Rep. 61. Illegality of contract. Armstrong v. Tohr, 298. — 11 Wheaton, 258. 15. Hunter v. Britts, 3 Campb. N. P. Rep. 455. Action for mesne profits. Chirac v. Reinicker, 310.-11 Wheaton, 280. 16. Gibson v. Hunter, 2 H. Bl. Rep. 187. Demurrer to evidence. Fowle v. The Common Council of Alexandria, 328. — 11 Wheaton, 320. 17. Bagot's case, 7 Edw. IV. 29. Grant to an alien. Govemeur's Heirs v. Robertson, 334. —11 Wheaton, 332. 18. Murray v. Baker, 3 Wheat. Rep. 541, 4 Cond. Rep. 320. Effect of the terms " beyond seas," in the saving clause of a statute of limitations. Shelby v. Guy, 345. — 1 1 Wheat, 361. 19. Brent v. Chapman, 5 Cranch's Rep. 358, 2 Cond. Rep. 279. Statute of limitations of Virginia as to servile property. Ibid. 20. Polk's Lessee v. Wendell, 9 Cranch's Rep. 87, 3 Cond. Rep. 286 ; 5 Wheat. Rep. 293, 4 Cond. Rep. 650. Validity of a grant, how far it may be contested at law. Patterson v. Winn, 355.— 11 Wheaton, 380. 21. Henriquez v. The Dutch West India Company, 2 Lord Raym., 1536. Evidence of the existence of a corporation. United States v. Amedy, 362. — 11 Wheaton, 392. 22. The King v. Gillson, 1 Taunt. Rep. 96 ; 2 Leach, 1007. Proof of insurance on an in- dictment for setting fire to a house with intent to defraud the underwriters. Ibid. 23. The King v. Harrison, 1 Leach, 180; 2 East's PI. Cr. 927, 988. Word person, whether it extends to corporations. Ibid. 24. Renner v. the Bank of Columbia, 9 Wheat. Rep. 581, 5 Cond. Rep. 691. Usage as to demanding payment of note, and giving notice on fourth day of grace. Mills v. The Bank of the United States, 373.— 11 Wheaton, 431. 25. Leaper v. Tatton, 17 East's Rep. 420. Acknowledgment of a debt, when sufficient to take a case out of the statute of limitations. Wetzell v. Bussard, 322. — 11 Wheaton, 309. 26. Swan v. Sowell, 3 Barnw. and Aid. 769 ; S. P. S. C. Ibid. 27. Cotton V. Marsh, 3 Taunt. Rep. 380. Ibid. 28. Clementson v. Williams, 8 Cranch's Rep. 72, 3 Cond. Rep. 37. Ibid. 89. The ApoUon, The Marianna Flora, 9 Wheat. Rep. 362, 5'Cond. Rep. 612. The Pal- myra, 397 12 Wheaton, 1. SO. Head v. the Providence Insurance Company, 2 Cranch, 127, 1 Cond. Rep. 370. Powers of corporations created by statute. Bank of the United Slates v. Dandridge, 440. 12 Wheaton, 64. INDEX. 559 CASES CITED, AND CONFIRMED OR OVERRULED. 31. Miller v. Nicholls, 4 Wheat. Eep. 311, 4 Cond. Rep. 46.^. Appellate jurisdiction of this court from the judgments of the highest state courts, in cases arising under the constitution, laws, and treaties of the union. WilUama v. Norris, 462. — 12 Wheaton, 117. 32. Osborn v. The Bank of the United States. 9 "Wheat. Eep. 855, 5 Cond. Eep. 741. Jurisdiction of the courts of the union in suits brought b; the postmaster-general. Postnmster- General v. Early, 480.— 12 Wheaton, 136. 33. Fowle V. The Common Council of Alexandria, 1 1 Wheat. Eep. 320, 6 Cond. Eep. 328. Demurrer to evidence. Columbian Insurance Company v. Catleti, 541. — 12 Whea- ton, 383. 34. Oliver v. The Maryland Insurance Company, 7 Cranch, 487, 2 Cond. Eep. 580. Devi- ation, Ibid. 35. M'CuUoch V. The State of Maryland, 4 Wheat. Rep. 316, 4 Cond. Eep. 466. State power of taxation. Brown v. The State of Maryland, 554. — 12 Wheaton, 419. 36. The Emily and Caroline, 9 Wheat. Eep. 381, 5 Cond. Rep. 623. The Plattsburg, 10 Wheat Eep. 133, 6 Cond. Rep. 45. Acts constituting a " fitting out" under the slave trade laws. United States v. Gooding, 572. — 12 Wheaton, 460. 37. United States v. Kirkpatrick, 9 Wheat. Rep. 720, 5 Cond. Rep. 733 ; and the United States V. Vanzandt^ 1 1 Wheat. Rep. 184, 6 Cond. Eep. 264. Discharge of surety by laches, or varying the terms of the contract. United States v. Nicholl, 611. — 12 Wheaton, 505. CHANCERY AND CHANCERY PRACTICE. 1. Although bills of review are not strictly within the statute of limitations, yet courts of equity will adopt the analogy of the statute in prescribing the time within which they shall be brought. [See note at the end of the case.] Thomas v, Harvie, 44. — IQ Wheaton, 146. 2. Appeals in equity causes being limited by the judiciary acts of 1789, c. 20, s. 22, and of 1803, c. 353, s. 2, to five years after the decree, the same period of limitation is applied to bills of review. Ibid. 3. Quisre, Whether a bill of review, founded upon matter discovered since the decree, is also barred by the lapse of five years 1 Ibid. 4. It is in the discretion of the court, to grant leave to file a bill of review for that cause. Ibid. 5. The joinder of improper parties as citizens of the same state, &c., will not affect the juris- diction of the circuit courts in equity, as between the parties who are properly before the court, if a decree may be pronounced as between the parties who are citizens of the same state. [See note at the end of the case.] Carneal v. Banks, 54. — 10 Wheaton, 181. 6. A decree must be sustained by the allegations of the parties, as well as by the proofs in the cause, and cannot be founded upon a fact not put in issue by the pleadings. Ibid. 7. Bill to rescind a contract for the exchange of lands dismissed under the special circum- stances of the case. Ibid. 8. The rule which requires all the parties in interest to be brought before the court, does not affect the jurisdiction, but is subject to the discretion of the court, and may be modified according to circumstances. [See note at the end of the case.] Elmendorf y. Taylor, 47.— 10 Wheaton, 152. 9. In the courts of the United States, wherever the case may be completely decided as between the litigant parties, an interest existing in some other person, whom the process of the court cannot reach, as if such party be a resident of another state, will not prevent a decree upon the merits. Ibid. 10. Although the statutes of limitations do not apply, in terms, to courts of equity, yet the period of limitation which takes away a right of entry, or an action of ejectment, has been held by analogy to bar relief in equity even where the period of limitation for a writ of right, or other real action, had not expired. [See note to the preceding case.] Ibid. 11. Where an adverse possession has continued for twenty years, it constitutes a complete bar in equity, wherever an ejectment would be barred if the plaintiff possessed a legal title. Ibid. 1 Z. The purchaser of an equity of redemption cannot set up usury as a defence to a bill brought by the mortgagee for a foreclosure, especially if the mortgagor has himself waived the defence. De Wolf v. Johnson, 140. — 10 Wheaton, 367. 13. Under a usury law which does not avoid the securities, but only forbids the taking a 560 INDEX. CHANCERY AND CHANCERY PRACTICE. greater interest than six per centum per annum, a court of equity will not refuse its aid to recover tlie principal. Jbid. 14. A certificated banlirupt or insolvent, against whom no relief can be had, is not a neces- sary party to a suit in equity ; but if he be made a defendant, he cannot be examined as a witness in the cause, until an order has been obtained upon motion for that purpose. Ibid. 15. There must be sufficient equity apparent on the face of the bill to warrant the court in granting the relief prayed; and the material facts on which the plaintiff relies must be so distinctly alleged as to put them in issue. [See note at the end of the case.] Harding v. Handy, 236.— U Wheaton, 103. 16. A court of equity ha's jurisdiction of a suit brought by heirs-at-Iaw to set aside a convey- ance of lands obtained from their ancestor by undue influence, he being so infirm, in body and mind, from old age, and other circumstances, as to be liable to imposition, although his weakness does not amount ^o insanity. Ibid. 17. The same jurisdiction may be exercised where one of the heirs-at-law has, with the consent of the others, taken such a deed, upon an agreement to consider it as a trust for the maintenance of the grantor, and, after his death, for the benefit of his heirs, and the grantee refuses to perform the trust. Ibid. 18. Under what circumstances such a conveyance may be allowed to stand as security for actual advances and charges, and set aside for all other purposes. Ibid. 19. In such a case, not depending on the absolute insanity of the grantor at the time of executing the conveyance, the court may determine the question of capacity without directing an issue. Ibid. 20. The verdict of a jury as to the sanity of the grantor at the time of executing such a con- veyance, would not be conclusive, the court being competent to determine for itself the degree of weakness, or of imposition, which will induce it to set aside the instrument. Ibid. 21. Exceptions to the report of a master are to be regarded by the court only so far as they are supported by the special statements of the master, or by a distinct reference to the particular portions of testimony on which the party excepting relies. The court does not investigate the items of an account, nor review the whole mass of testimony taken before the master. Ibid. 22. Rules of practice in accounting before a master. [See note at the end of the case.] Ibid. 23. In accounting before a master, the oath of the party should not be received to support charges, which, from their nature, admit of full proof. Ibid. 24. In a suit in equity brought by heirs-at-law to set aside a conveyance obtained from their ancestor by fraud and imposition, a final decree for the sale of the property cannot be pronounced, until all the heirs are brought before the court as parties, if they are within the jurisdiction. Ibid. 25. If all the heirs cannot be brought before the court, the undivided interest of those who are made parties may be sold. 26. Although, in general, all encumbrancers must be made parties to a bill of foreclosure, yet where a decree of foreclosure and sale was made and executed, at the suit of a subse- quent mortgagee, and with the consent of the mortgagor, it not appearing to the court that there was any prior encumbrance, the proceedings will not be set aside upon the application of the mortgagor, in order to let in the prior mortgagee, who ought regularly to have been made a party, unless it be necessary to prevent irremediable mischief. Finley v. The Bank of the United States, 319. — 11 Wheaton, 304. 27. Qujere, whether such a practice be admissible in any case. [See note at the end of the case.] Ibid. 28. But in such a case, the prior encumbrancers are not bound by the decree in a suit to which they are not made parties ; and the purchasers under the sale take subject to the prior liens. Ibid. 29. A court of equity either enforces an award as it is made, or sets it aside if in any respect defective ; but it is contrary to its practice to confirm the award so far as it extends, and to supply omissions by decree of the court. Camochan v. Christie, 382. 11 Whea- ton, 44-6. 30. Where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by the defendant. Ibid. 31. Where an equity cause may be finally decided as between the parties litigant, without bringing others before the court, who would, generally speaking, be necessary parties such parties may be dispensed with in the circuit court, if its proofs cannot reach them INDEX. 561 CHANCERY AM) CHANCERY PRACTICE. or if they are citizens of another state. [See note at the end of the case.] Mallow v. Hinde, 516.— 12 Wheaton, 193. 32. But if the rights of those not before the court are inseparably connected with the claim of the parties litigant, so that a final decision cannot be made between them without aJfecting the rights of the absent parties, the peculiar constitution of the circuit court forms no ground for dispensing with sucli parties. Und. 33. But the court may, in its discretion, where the purposes of justice require it, retain juris- diction of the cause on an injunction bill as between the parties regularly before it, until the plaintiifs have had an opportunity of litigating their controversy with the other parties in a competent tribunal, and if it finally appear by the judgment of such tribu- nal, that the plaintiifs are equitably entitled to the interest claimed by the other parties, may proceed to a final decree upon the merits. Ibid. 34. A question of fact, upon a bill filed to set aside the sale and assignment of a land war- rant, upon the ground that it was obtained by fraudulent misrepresentation, and taking undue advantage of the party's imbecility of body and mind. Evidence deemed insuffi- cient and bill dismissed. Connor andothers v. Feathersfone, 521. — 12 Wheaton, 199. 35. A question of fact, in a suit in equity, respecting the proprietary interest in entry of lands within the military district of Ohio. Dunlap v. Dunlap, 654. — 12 Wheaton, 574. 36. Bule of equity, that where land is sold as for a certain quantity, a court of equity re- lieves if the quantity be defective, only applicable to contracts for the sale of land in a settled country, where the titles are complete, the boundaries determined, and the real quantity known, or capable of being ascertained by the vendor. Ibid. 37. Relief in equity against a judgment at law, upon certain bonds given for the indemnity of the obligee, as endorser of notes drawn by the obligor, the consideration having failed. Scott et al v. Shreeve, 662.— 12 Wheaton, 605. 38. The assignee of such bonds takes them subject to all equities existing between the origi- nal parties. Ibid. 39. The plaintiff below is entitled to relief in equity, not having a complete and adequate remedy at law. Ibid. 40. On a bill filed by an executor against a devisee of lands charged with the payment of debts, for an account of the trust-fund, &c., the creditors are not indispensable parties to the suit. The fund may be brought into court, and distributed under its discretion, according to the rights of those who may apply for it. Potter v. Gardner, 606. — 12 Wheaton, 498. CHANCERY JURISDICTION. Notes of cases on the chancery jurisdiction of the courts of the United States, 247. CITY OF WASHINGTON. 1. Where, by the charter granted by congress to the city of Washington, the corporation was impowered " to authorize the drawing of lotteries," for effecting certain improve- ments in the city, and upon certain terms and conditions : held, that the corporation was liable to the holder of a ticket in such a lottery for a prize drawn against its num- ber, although the managers appointed by the corporation to superintend such lottery were impowered to sell, and had sold the entire lottery to a lottery dealer for a gross sum, who was, by his agreement with them, to execute the details of the scheme as to the sale of the tickets, the drawings, and the payment of the prizes. [See note at the end of the case.] Clark v. The Corporation of Washington, 425. — 12 Wheaton, 40. 2. It seems, that the power granted in the charter " to authorize the drawing of lotteries," cannot be exercised so as to discharge the corporation from its liability, either by grant- ing the lottery, or selling the privilege to others, or in any other manner ; but the lot- teries to be authorized by the corporation must be drawn under its superintendence, for its own account, and on its own responsibility. Ibid. COLLECTOR. 1. Under the embargo act of the 25th of April, 1808, ch. 170, s. 11, the collector is protected in the hanest exercise of his discretion in detaining the vessel, and securing both ves- sel and cargo, until an actual termination of the voyage. Otis v. Walter, 270. — 11 Wheaton, 192. 2. Whether the voyage has terminated, is a question of fact, and if the voyage be coloiirably, but not really terminated, the collector may detain the vessel, if he has honest suspi- cions. Ibid. 3. Forfeitures and penalties. Vol. VI.— 71 562 INDEX. COMMISSION TO VESSELS OF WAR AND PRIVATEERS. Notes of cases, 408. CONSTITUTIONAL LAW. 1. Quaere, Whether, under the power to regulate commerce among the several states, con- gress may not extend the remedy, by the summary process of the admiralty, to the case of voyages on the western waters ? The Steamboat Thomas Jefferson, 173, — 10 Wheaton, 428. S. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the IJnited States ; and the states have no authority to control these proceed- ings, except so far as the state process acts are adopted by congress, or by the courts of the United States under the authority of congress. Wayman v. Southard, 1. — 10 Wheaton, 1. 3. The ^proceedings on executions, and other process, in the courts of the United States, in suits «t common law, are to be the same in each state, respectively, as were used in the supreme court of the state in September, 1789, subject to such alterations and additions as the said courts of the United States may make, or as the supreme court of the United States shall prescribe by rule to the other courts. Ibid. i. A state law regulating executions, enacted subsequent to September, 1789, is not applica- ble to executions issuing on judgments rendered by the courts of the United States, unless expressly adopted by the regulations and rules of those courts. Ibid. 5. The thirty-fourth section of the judiciary act of 1789, c. 30, which provides, « that the laws of the several states, except," &c., " shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply," does not apply to the process and practice of the courts. It is a mere legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci. Ibid. 6. The statutes of Kentucky concerning executions, which require the plaintiff to endorse on the execution that bank-notes of the Bank of Kentucky, or notes of the Bank of the commonwealth of Kentucky, will be received in payment, and, on his refusal, authorize the defendant to give a replevin bond for the debt, payable in two years, are not appli- cable to executions issuing on judgments rendered by the courts of the United States. Ibid. 7. The provision in the process act of 1793, c. 137, authorizing the courts of the United States to make alterations in the regulations concerning executions, and other process issuing from those courts, is not a delegation of legislative authority, and is conformable to the constitution. Ibid. 8. The act of assembly of Kentucky of the 21st of December, 1831, which prohibits the sale of property taken under -executions for less than three-fourths of its appraised value, without the consent of its owner, does not apply to a venditioni exponas issued out of the circuit court for the district of Kentucky. The Bank of the United States v. Halstead, 23.— 10 Wheaton, 51. 9. The laws of the United States authorize the courts of the union so to alter the form of the process of execution used in the supreme courts of the states in 1789, as to subject to execution lands and other property, not thus subject by the state laws in force at that time. [See note at the end of the case.] Ibid. 10. Quaere, How far a will of lands, duly proved and recorded in one state, so as to be evi- dence in the courts of that state, is thereby rendered evidence in the courts of another state, (provided the record on its face shows that it possesses all the solemnities required by the laws of the state where the land lies,) under the fourth art. sec. 1, of the consti- tution of the United States ? Darby's Lessee v. Mayer, 185. — VO Wheaton, 465. 11. An indictment, under the crimes act of 1790, ch. 35, s. 37, for infracting the law of nations by offering violence to the person of a foreign minister, is not a case " affecting ambassadors, other public ministers and consuls," within the second section of the third article of the constitution of the United States. [See note at the end of the case."! United States v. The Ortega, 394.— 11 Wheaton, 467. 12. The circuit courts have jurisdiction of such an offence under the eleventh section of the judiciary act of 1789, ch. 20. Ibid. 13. Qusere, Whether the jurisdiction of the supreme court is not only original, but exclusive of the circuit court, in " cases affecting ambassadors, other public ministers and consuls," within the true construction of the second section of the third article of the constitution '\ Ibid. ?4. The authority to decide whether the exigencies contemplated in the copstitution of the United States, and the act of congress of 1795, ch. 101, in which the president hag authority to eall forth the militia, " to execute the laws of the union, suppress insurrec- {jpns, and r^pel iflyf»^ far as the point of division goes. The Antelope, 30. — 10 Wheaton, 66. 2. Where the court is equally divided in opinion upon a writ of error, the judgment of the court below is to be affirmed. [See note at the end of the case.] Etting v. The Bank of the United States, 216'.— 11 Wheaton, 59. 3. Where a case is certified to this court upon a division of opinions of the judges below, ^' and the points reserved, upon which they were divided, are too imperfectly stated to enable this court to pronounce any opinion upon them, this court will neither award a venire de novo, nor certify any opinion to the court below upon the points reserved, but will merely certify that they are too imperfectly stated. [See note at the end of the case.] PerMns v. Bart, 287.— 11 Wheaton, 237. 4. Note, 222. DUTIES. 1. The term " concealed," as used in the sixty-eighth section of the duty act of the 2d of March, 1799, cb. 128, applies only to articles intended to be secreted and withdrawn from public view on account of the duties not having been paid, or secured to be paid, or from some other fraudulent motive. The forfeiture inflicted by that section, does not extend to a case where, the duties not having been paid or secured in any other manner than by giving the general bond, and storing the goods according to the sixty-second section of the act, the goods were fraudulently removed from the store-house agreed upon by the collector and the importer, by some persons other than the claimants, who were bona fide purchasers of the goods, and without their knowledge and consent, to another port, where the goods were found stowed on board the vessel in which they were trans- ported, in the usual manner of stowing such goods when shipped for transportation. United States v. Three Hundred and Fifty Chests of Tea, 593.— 12 Wheaton, 486. 2. Under the sixty-second section of the act, in the case of teas, the duties " are secured to be paid," in the sense of the law, by the single bond of the importer, accompanied by a deposit of the teas imported, to be kept under the lock and key of the inspector, and subject to the control of the collector and naval officer, until the duties are actually paid, or otherwise secured ; and no forfeiture is incurred, under the sixty-eighth section, by the removal and concealment of the goods on which the duties have been thus « secured to be paid." Ibid. 3. To authorize the seizure, and bringing to adjudication of teas, under the forty-third section of the act, it is necessary, not enly that the chests should be unaccompanied by the proper certificates, but also by the marks requhed to be placed upon them by the thirty- ninth section. Ibid. 4. The lien of the government for duties, attaches upon the articles from the moment of their importation, and is not discharged by the unauthorized and illegal removal of the goods from the custody of the custom-house officers. Ibid. 5. Quaere, whether such lien can be enforced against a bona fide purchaser without notice that the dnties were not paid or secured ? Ibid. 6. The lien for duties cannot, in any case, be enforced by a libel of information in the ad- miralty ; the revenue jurisdiction of the district courts, proceeding in rem, only extend- ing to cases of seizures for forfeitures under laws of impost, navigation, or trade of the United States. Ibid. 7. But a suit at common law may be instituted in the district or circuit courts, in the name of the United States, founded upon their legal right to recover the possession of goods upon which they have a lien for duties, or to recover damages for the illegal taking or detaining the same. Ibid. 8. Construction of statutes. 9. Forfeitures and penalties. EMBARGO. Construction of statutes. KRROR AND WRIT OF ERROR. i. A writ of error will not lie to the supreme court on the allowance or refusal of amend ments in the circuit court. Chirac v. Reinicker, 310. — 11 Wheaton, 280. 3. Although a judge may refuse to declare the law to the jury on a hypothetical question not warranted by the testimony in the cause, yet, if he proceeds to state the law, and states it erroneously, his opinion may be revised in the court above ; and if it can have INDEX. 571 ERROR AND WRIT OF ERROR. had any influence on the jury, their verdict will be set aside. [See note at the end of the case.] Etting v. The Bank of the United States, 216.— 11 Wheaton, 59. 3. Where the court is equally divided in opinion upon a writ of error, the judgment of the court below is confirmed. Ibid. 4. Amendments to the pleadings are matters in the discretion of the court below. Error will not lie to this court, on the allowance or refusal of such amendments. [See note at the end of the case.] Chirac v. Reinicker, 310. — 11 Wheaton, 280. 5. Inconvenience of the practice of bringing the whole evidence, instead of the facts, for review before this court. Armstrong v. Toler, 298. — 11 Wheaton, 258. 6. The party cannot, by such a practice, take advantage of any omission in the judge's charge under a general exception to it. If he wishes the instruction of the court to the jury on any point omitted in the charge, he must suggest it, and request the judge's opinion on it. Ibid. 7. Notes of cases, 369. EVIDENCE. 1. Queere, How far the state legislatures may authorize the condemnation of vessels as un- seaworthy, by tribunals or boards constituted under state authority, in the absence of any general regulation made by congress, under its power of regulatiiig commerce, or as a branch of the admiralty jurisdiction ? However this may be, the above condemna- tion not being specially authorized by any law of the state of Louisiana, it would not have been considered as conclusive evidence within the clause, had not the condemna- tion been obtained by the master, as the agent of the owners, and afterwards adopted by them as proof of the facts stated therein. Janney v. The Columbian Insurance Company, 166.— 10 Wheaton, 411. 3. Although it is the province of the court to construe written instruments, yet, where the effect of such instruments depends not merely on the construction and meaning of the instrument, but upon collateral facts in pais, and extrinsic circumstances, the inferences of fact to be drawn from Jhem are to be left to the jury. Etting v. The Bank of the United States, 216.-11 Wheaton, 59. 3. A certified copy of a registered deed cannot be given in evidence, if within the power of the party claiming under it to produce the original, unless there be some express pro- vision by statute, making an authenticated copy evidence. Brooks v. Marbury, 223. —11 Wheaton, 78. 4. Where a voluntary deed is impeached as fraudulent, evidence of judgments against the grantor is admissible as proof (among other facts) that be was indebted at the time of executing the deed, although the grantee was not a party to the suits on which the judgments were obtained. Hinde v. Longworth, 370. — 11 Wheaton, 199. 5. Evidence is admissible to show another consideration than that e:tpressed in the deed, if not inconsistent with the consideration expressed. Ibid. 6. A settled account is only prima facie evidence of its correctness, at law or in equity ; it may be impeached by proof of fraud, or omission, or mistake ; and if it be confined to particular items of account, concludes nothing as to other items not stated in it. Per- kins V. Hart, 287.-11 Wheaton, 237. 7. A counsel or attorney is not a competent witness to testify as to facts communicated to either by his client, in the course of the relation subsisting between them, but may be examined as to the mere fact of the existence of that relation. Chirac v. Reinicker, 310.-11 Wheaton, 280. 8. A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons ; but where the action is brought against the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit, although he was not a party to that suit, and did not take upon himself the defence thereof upon the record, but another did, as landlord. Ibid. 9r A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons. But where the action is brought against the landlord in fact, the record, in the ejectment suit, is admissible to show the possession of the plaintiff connected with his title, although it is not conclu- sive upon the defendant in the same manner as if he had been a party on the record. Ibid. 10, Under the act of the 26th of May, 1790, ch. 38, copies of the legislative acts of the several states, authenticated by having the seal of the state affixed thereto, are conclu- sive evidence of such acts in the courts of other states, and of the union. No other 572 INDEX. EVIDENCE. formality is required than the annexation of the seal ; and, in the absence of all con trary proof, it must be presumed to have been done by an officer having the custody thereof, and competent authority to do the act. [See note at the end of tbe case.J United States v. Amedy, 362.— 11 Wheaton, 392. 11. An objection to the competency of a witness, on the ground of interest, cannot be tai^en in the supreme court on a hearing on the appeal, where the witness had been admitted without objection, in the district and circuit court. The Palmyra, 397. — 12 Whea- ton, 1. 1 2. Distinction as to proof of the acts of corporations and of private persons. Bank of the United States v. Dandridge, 440. — 12 Wheaton, 64. 13. Proof of the acts of aggregate corporations at the common law. Ibid. 14. How far the law requires the acts of corporations to be in writing. IMd. 15. Rules of evidence as to presumptions in the case of private individuals. Ibid. 16. Cases where corporate acts have been the subjects of presumption. Ibid. 17. A testamentary paper executed in a foreign country, even if executed so as to give it the effect of a last will and testament by the foreign law, cannot be made the foundation of a suit for a legacy in the courts of this country ; until it has received probate here, in the court having the peculiar jurisdiction of the probate of wills and other tes- tamentary matters. [See note at the end of the case.] Armstrong v. Lear, 500. — 12 Wheaton, 169. 18. In criminal proceedings, the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute. United States v. Gooding, 572. — 12 Whea- ton, 460. 19. Admiralty. 20. Chancery. 21. Insurance. 22. Lex loci. 23. Usury. FEE SIMPLE. General rule as to what words in a devise will carry a fee. Wright v. Dunn, 76. — 10 Wheaton, 204. FOREIGN MINISTERS AND CONSULS. - 1. An indictment under the crimes act of 1790, cb. 35, s. 37, for infracting the law of na- tions by offering violence to the person of a foreign minister, is not a case " affecting ambassadors, other public ministers and consuls," within the second section of the third article of the constitution of the United States. [See note at the end of the case.] The United States v. Ortega, 394.— 11 Wheaton, 467. 2. The circuit courts have jurisdiction of such an offence under the eleventh section of the judiciary act of 1779, ch. 20. Ibid. 3. Qusere, whether the jurisdiction of the supreme court is not only original, but exclusive of the circuit court, in " cases affecting ambassadors, other public ministers and con- suls," within the true construction of the second section of the third article of the con- stitution ? Ibid. 4. Notes of cases, 396. FORFEITURES AND PENALTIES. 1. It is not necessary, to incur the forfeiture under the slave trade acts, that the equipments for the voyage should be completed. It is sufficient if any preparations are made for the unlawful purpose. The Plattsburgh, 43. — 10 Wheaton, 133. 2. The secretary of the treasury has authority, under the remission act of the 3d of March. 1797, c. 361, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the collector for distribution. The United States v. Morris, 90.-10 Wheaton, 246. 3. Such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States. Ibid, 4. Under the duty act of 1799, c. 126, s. 43, it is no cause of forfeiture, that the casks, which are marked and accompanied by the certificates required by the act, contain dis- tilled spirits which have not been imported into the United States, or a mixture of domestic with foreign spirits ; the object of the act being the security of the revenue, INDEX. 573 FORFEITURES AND PENALTIES. without interfering with those mercantile devices which look only to individual profit without defrauding the government. Sixty Pipes of Brandy, IIZ. — 10 Wheaton, 428. FRAUD. 1. A debtor has a right to prefer one creditor to another in payment; and it is no objection to the validity of an assignment for that purpose, that it was made by the grantor, and received by the grantee, as trustee, in the hope and expectation, and with » view of preventing prosecution for a felony connected with his transactions with his creditors ; if the preferred creditors have done nothing to excite that hope, and the assignment was made without their knowledge or concurrence at the time of its execution, and without a knowledge of the motives which influenced the assignor, or was not after- wards assented to by 'them under some engagement, express or implied, to suppress or forbear the prosecution. [See note at the end of the case.] Brooks v. Marbury, 223. —11 Wheaton, 78. 3. An assignment for the benefit of preferred creditors is valid, although their assent is not given at the time of its execution, if they subsequently assent in terms, or by actually receiving the benefit of it. Ibid. 3. It is no objection to such an assignment, that it defeats all other creditors of their legal remedies, even if amounting to a majority in number and value, unless there be some express provision of a bankrupt law to invalidate the deed. Ibid. 4. Qusere, How far, and under what circumstances, the possession of the property assigned to trustees for the benefit of creditors, continuing in the grantor, will invalidate the assign- ment. [See note at the end of the case.] Ibid. 5. Where a voluntary deed is impeached as fraudulent, evidence of judgments against the grantor is admissible as proof (among other facts) that he was indebted at the time of making the deed, although the grantee was not a party to the suits on which the judgments were obtained. [See noto at the end of the case.] Hinde v. Longuiorth, 270.— 11 Wheaton, 199. 6. A voluntary deed is void only as to antecedent and not as to subsequent creditors. But when the record of a judgment obtained a short time after the date of such conveyance, appears to be founded on accounts exhibiting a prior indebtedness, it is competent evi- dence to be left to the jury to establish the fact that the grantor was indebted at the date of the deed. Ibid. 7. A deed from a parent to a child for the consideration of love and affection is not abso- lutely void as against creditors : it may be so under certain circumstances ; but the mere fact of being in debt to a small amount would not make the deed fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift to the child was a reasonable provision, according to his estate and condition in life, and leaving enough for the payment of the debts of the grantor. Ibid. 8. The want of a valuable consideration may be a badge of fraud, but it is only presumptive and not conclusive evidence of it, and may be met and rebutted by evidence on the other side ; and where the deed to the child is expressed to be for the consideration of love and affection, evidence to show that the father was indebted at the time to the child, to an amount equal to the value of the property conveyed to him, is competent to go to the jury to repel the presumption of fraud. Ibid. GUARANTEE. 1. The following letter of guarantee: — "Baltimore, 17th Nov., 1803. Captain Charles Drummond, Dear sir, My son William having mentioned to me, that in consequence of your esteem and friendship for him, you had caused and placed property of yours and your brother's in his hands for sale, and that it is probable, from time to time, you may have considerable transactions together, on my part I think proper to guaranty to you the conduct of my son, and shall hold myself liable, and do hold myself liable, for the faithful discharge of all his engagements to you, both now and in future. Geo. ' Pbestman :" — will extend to a partnership debt incurred by William P. to Charles Drummond, and Richard his brother, it being proved that the transactions to which the letter related were with them as partners, and that no other brother of the said Charles was interested therein. [See note at the end of the case.] I}rummond v. Presiman, 620. — 12 Wheaton, 515. 2. In such a case, the record of a judgment confessed by the principal, William P. to Richard D., as surviving partner of Charles and Richard D., for the amount of the debt due by William P. to the partnership firm, was held to be admissible in evidence, inter alia, to charge the guarantor, George P. under his letter of guarantee. Ibid. 3. Notes of decisions on the law of guarantee, 626. 574 INDEX. HfTSBAND AND WIFE. 1. Quierc, How far contingent or reversionary interests of the wife, may be assigned by ihe husband ? Cassell v. Carroll, 249.— 11 Wheaton, 134. 2. It seems, that an assignment by the husband of a debt actually due and payable to the wife, devests, in equity, the title of the wife. Ibid. INDICTMENT. 1 Objections to the form and sufficiency of the indictment may, in the discretion of the court, be discussed, and decided during the trial before the jury ; but, generally speak- ing, they ought regularly to be considered only upon a motion to quash the indictment, or in arrest of judgment, or on demurrer. United States v. Gooding, 572. — 12 Whea- ton, 460. 2. In criminal proceedings, the onus probandi rests upon the prosecutor, unless a different provision is expressly made by statute. Ibid. INJUNCTION. 1 . An injunction may issue, on a judgment obtained on the law side of the circuit court, to stay proceedings on the judgment, although a writ of error had been issued in the case from the supreme court. Parker v. T%e Judges of the Circuit Court of Maryland, 644.— 12 Wheaton, 561. 2. An injunction awarded by a district judge, expires at the next term of the circuit court, unless continued by order of the court. Ibid. 3. Where the defendant in the injunction, and the court supposed the injunction had not expired, and frequent applications had been made to the court to dissolve it, which were refused, this was under the circumstances considered as equivalent to renewing the injunction. Mandamus refused. [See note at the end of the case.] Ibid. INSOLVENT AND BANKRUPT LAWS OP THE STATES OF THE UNITED STATES. 1. A bankrupt or insolvent law of any state, which discharges both the person of the debtor, and his future acquisitions' of property, is not " a law impairing the obligation of con- tracts," so far as respects debts contracted subsequent to the passage of such law, in those cases where the contract was made between citizens of the state under whose laws the discharge was obtained, and in whose courts the discharge may be pleaded. Ogden V. Saunders, 523. — 12 Wheaton, 213. 2. The power given to the United States by the constitution, " to establish uniform laws on the subject of bankruptcies throughout the United States," is not exclusive of the right of the states to legislate on the same subject ; except when the power is actu- ally in exercise by congress, and the laws of the state are in conflict with the law of the United States. Ibid. 3. But when, in the exercise of that power, the states pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other states, there arise a conflict of sovereign power, and a collision with the judicial powers granted to the United States, which render the exercise of such a power incompatible with the rights of other states, and with the constitution of theUnited States. [See note at the end of the case.] Ibid. 4. The states have a right to regulate, or abolish, imprisonment for debt, as a part of the remedy for enforcing the performance of contracts. Mason v. Haile, 535. — 12 Wheaton, 370. 5. Where, the condition of a bond for the jail limits, in Rhode Island, required the party to remain a true prisoner in the custody of the keeper of the prison, and within the limits of the prison, " until he shall be lawfully discharged, without committing any manner of escape or escapes during the time of restraint, then this obligation to be void, or else to remain in full force and virtue :" held, that a discharge, under the insolvent laws of the state, obtained from the proper court, in pursuance of a resolution of the legislature, and discharging the party from all his debts, &c., " and from all imprison- ment, arrest, and restraint of his person therefor," was a lawful discharge, and that his going at large under it was no breach of the condition of the bond. Ibid. 6. An act of a state legislature, requiring all importers of foreign goods by the bale or pack- age, &c., and other persons selling the same by wholesale, bale, or package, &c., to take out a license for which they shall pay fifty dollars, and in case of neglect or refusal to lake out such license, subjecting them to certain forfeitures and penalties, is repug- nant to that provision of the constitution of the United States, which declares that " no state shall, without the consent of congress, lay any impost or duty on imports or ex- ports, except what may be absolutely necessary for executing its inspection laws ;" and Vol. 6 INDEX. 575 INSOLVENT AND BANKRUPT LAWS OF THE STATES OF THE UNITED STATES, to that which declares that congress shall have power " to regulate commerce with fo- reign nations, among the several states, and with the Indian tribes." Brown v. The State of Maryland, 554.— 12 Wheaton, 419. 7. The power to regulate commerce, given to congress by the constitution, is co-extensive with the subject on which it acts ; and cannot be stopped at the external boundary of a state, but must enter its interior. If the power reaches the interior of a state, and may be there exercised, it must be capable of authorizing the sale of those articles it intro- duces. Commerce is intercourse ; one of its most ordinary ingredients is traffic. It is inconceivable, that the power to authorize this traffic, when given in the most compre- hensive terms, with the intent that its efficacy shall be complete, should cease at the point, when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported. Sale is the object of importation, and it is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, as the importation itself. It must be considered as a component part of the power to regulate commerce. Congress has not only a right to authorize importation ; but to authorize the importer to sell. Slid. 8. Notes of cases as to the constitutionality of state insolvent and bankrupt laws, 567. INSURANCE. 1 . Under a policy containing the following clause : << it is declared and understood, that if the above-mentioned brig, after a regular survey, should be condemned for being un- sound or rotten, the insurers shall not be bound to pay the sum hereby insured, nor any part thereof." A survey by the master and wardens of the port of New Orleans, which was obtained at the instance of the master, who was also a part owner, and was transmitted by him to the other part owner, and by the latter laid before the underwrit- ers as proof of the loss, stated, that the wardens " ordered one streak of plank fore and aft to be taken out, about three feet below the bends on the starboard side ; and found the timber and bottom plank so much decayed, that we were unanimously of opinion her repairs would cost more than she would "be worth afterwards, and that it would be for the interest of all concerned she should be condemned as unworthy of repair on that ground. We did, therefore, condemn her as not seaworthy, and as unworthy of re- pair ; and, therefore, according to the powers vested by law in the master and wardens of this port, we do hereby order and direct the aforesaid damaged brig to be sold at public auction for the account of the insurers thereof, or whomsoever the same may concern." It was held, that the survey was conclusive evidence, under the clause, to discharge the insurers from their liability for the loss. Janney v. The Columbian Insurance. Company, 166. — 10 Wheaton, 411. 3. A policy for ten thousand dollars upon a voyage " at and from Alexandria to St. Thomas, and two other ports in the West Indies, and back to her port of discharge in the United States, upon all lawful goods and merchandise, laden or to be laden on board the ship, &c., beginning the adventure upon the said goods and merchandise from the lading at Alexandria, and (iontinuing the same until the said goods and merchandise shall be safely landed at St. 7^homas, &c^, and the United States aforesaid :" is an insurance upon every successive cargo taken on board in the course of the voyage out and home, so as to cover the risk of a return cargo, the proceeds of the sales of the outward cargo. The GolumMan Insurance Company v. Catlett, 541. — 12 Wheaton, 383. 3. Such a policy covers an insurance of ten thousand dollars during the whole voyage out and home, so long as the assured has that amount of property on board, without regard to the fact of a portion of the original cargo having been safely landed at an interme- diate port before the loss. ' Ibid. 4. Where the cargo, in the course of the outward voyage, and before its termination, was permanently separated from the ship by the total wreck of the latter, and the cargo being perishable in its nature, though not injured to one-half its value, it became neces- sary to sell it, the further prosecution of the voyage with the same ship or cargo became impracticable ; held, that this was a technical total loss, fjn account of the break- ing up of the voyage. [See note at the end of the case.] Ibid. 6. Whether a delay at a particular port constitutes a deviation, depends upon the usage of trade with reference to the object of selling the cargo. Where different ports are to be visited for this purpose, the owner has a right to limit the price at which the master may sell to a reasonable extent : and a delay at a particular port, if bona fide made for 576 INDEX. INSURANCE. that purpose, does not constitute a deviation, though occasioned by this restriction. [See note at the end of the case.] Ibid. 6. Freight is not a charge upon the salvage of cargo in the hands of the underwriters, whether the assured is owner of the ship or not. Ibid. 7. Where an insurance was effected after a loss had happened, though unknown to the assured, the master having om-itted to communicate information to the owner, and having expressed his intention not to write to the owner, and taking measures to prevent the fact of the loss being known, for the avowed purpose of enabling the owner to effect insurance, in consequence of which information of the loss had not reached the parties at the time the policy was underwritten : held, that the owner having acted with good faith, was not precluded from a recovery upon the policy on account of the fraudulent misconduct of the master. The General Interest Insurance Company V. Ruggles, 554.— 12 Wheaton, 408. 8. Notes of cases as to survey, 171, 9. Construction of statutes. lURISDICTION. 1. The district court has not jurisdiction of a suit for wages earned on a voyage, in a steam vessel, from Shippingport. in the state of Kentucky, up the river Missouri, and back again to the port of departure, as a cause of admiralty and maritime jurisdiction. [See note at the end of the case.] The Steamboat Thomas Jefferson, 173. — 10 Wheaton, 428. 3. The admiralty has no jurisdiction over contracts for the hire of seamen, except in cases where the service is substantially performed upon the sea, or upon waters within the ebb and flow of the tide. Ibid. 3. But the jurisdiction exists, although the commencement or termination of the voyage is at some place beyond the reach of the tide. It is sufficient, if the service is essentially a maritime service. Ibid. 4. The act of congress of 1790, ch. 20, for the government and regulation of seamen in the merchant service, confines the remedy in the district courts to such cases as ordinarily belong to the admiralty jurisdiction. Ibid. 5. The courts of the United States are courts of limited, but not of inferior jurisdiction. If the jurisdiction be not alleged in the proceedings, their judgments and decrees may be reversed for that cause, on a writ of error and appeal ; but, until reversed, they are conclusive evidence between parties and privies. M'Cormick v. Sullivant, 71. — ' 10 Wheaton, 192. 6. The title and disposition of real property are governed by the lex loci rei sitae. [See note, ante, p. 60.] Ibid. 7. In cases of seizure in time of peace, for an alleged hostile or piratical aggression in time of peace, the country of the captors and of the captured have concurrent jurisdiction ; and where the res capta is brought into a port of the captor's country for adjudication, its courts may exercise jurisdiction. The Marianna Fhra, 201. — 1 1 Wheaton, 1. 8. In general, the validity of a patent of lands can be impeached, for causes anterior to its being issued, in a court of equity only. But where the grant is absolutely void, as being issued without authority, or against the positive prohibitions of the statute, its validity may be contested at law. Patterson v. Winn, 355. — 1 1 Wheaton, 380. 9. Under the twenty-fifth section of the judiciary act of 1789, ch. 20, this court has no appel- late jurisdiction from the final judgment of the highest court of a state, in a suit, where is drawn in question the construction of a statute of, or a commission held under the United States, unless some title, right, privilege, or exemption, under such statute, &c., be specially set up by the party, and the decision be against the claim so made by him. [See note to the preceding case.] Montgomery v. Hernandez, 475. — 1 2 Whea- ton, 129. 10. The circuit courts of the union have jurisdiction, under the constitution, and the acts of April 30th, 1810, ch. 262, s. 29, and of March 3d, 1815, ch. 782, s. 4, of suits brought in the name of " the postmaster-general of the United States," on bonds given to the postmaster-general by a deputy postmaster, conditioned " to pay all moneys that shall come to his hands for the postages of whatever is by law chargeable veith postage, to the postmaster-general of the United States for the time being, deduct- ing only the commission and allowances made by law for his care, trouble, and charges, in managing the said office," &c. Postmaster-general v. Early, 480. — 12 Wheaton, 136. ' I. Where an equity cause may be finally decided as between the parties litigant, without Vol. 6 INDEX. 577 JUEISDICTION. bringing others beforfe the court, who would, generally speaking, be necessary parties, such parties may be dispensed with in the circuit court, if its proofs cannot reach them, or if they are citizens of another state. [See note at the end of the case.] Mallow v. Hinde, 516.— 12 Wheaton, 193. '2. But if the rights of those not before the court are inseparably connected with the claim of the parties litigant, so that a final decision cannot be made between them without affecting the rights of the absent parties, the peculiar constitution of the circuit court forms no ground for dispensing with such parties. Ibid. 13. But the court may, in its discretion, where the purposes of justice require it, retain juris- diction of the cause on an injunction bill as between the parties regularly before it, vintil the plaintiffs have had an opportunity of litigating their controversy with the other parties in a competent tribunal, and if it finally appear by the judgment of such tribunal, that the plaintifls are equitably entitled to the interest claimed by the other parties, may proceed to a final decree upon the merits. IKd. 14. Jurisdiction of courts of equity over legacies, cannot be exercised until the will has re- ceived probate in the proper court, having peculiar jurisdiction over testamentary mat- ters. Armstrong v. Lear, 500. — 12 Wheaton, 169. 15. Jurisdiction of the supreme court of the United States, when the construction of n clause in the constitution, or a statute of the United States, is drawn into question. Notes of cases, 472. 16. Jurisdiction. Notes, 474. 17. Admiralty. 18. Chancery. ' 19. Insurance. 20. Evidence. 21. Constitutional law. LAND TITLES IN MARYLAND. The title and claim of Charles lord Baltimore, his heirs and representatives, to the quit- rents reserved by the proprietary of the late province (now state) of Maryland, was extinguished by the agreement between the heirs, devisees, and personal representatives of the, said lord Baltimore, and of his son and heir, Frederick lord Baltimore, made in 1780, and confirmed by an act of the British parliament in 1781. Cassell v. Car- roll, 249 11 Wheaton, 134. LEGACY. To make a pecuniary legacy a charge upon lands devised, there must be express words, or a plain implication from the words of the will. Wright v. Dunn, 76 10 Wheaton, 204. LEX LOCI. 1. The courts of every government have the exclusive authority of construing its local sta- tutes, and their construction will be respected in every other country. [See note at the end of the case.] Elmendorf-i. Taylor, 47. — 10 Wheaton, 152. 2. This court respects the decisions of the state courts upon their local statutes, in the same manner as the state courts are bound by the decisions of this court in construing the constitution, laws, and treaties of the union. [See notes, 1 Cond. Rep. 1 59.] Ibid. 3. The title and deposition of real property is governed by the lex loci rei sitse. M' Cormick v. Sultivcmt, 71 10 Wheaton, 192. 3. The lex loci rei sitae governs as to the effect of a devise in one country of lands in an- other. Darby's Lessee v. Mayer, 185. — 10 Wheaton, 465. 5. Quaere, how far this general principle is modified by the provisions of the constitution and laws of the United States in respect to the faith and credit, &c., to be given to the pub- lic acts, records, and judicial proceedings of each state in every other state X Ibid. 6. Five years' bona fide possession of a slave constituting a title by the laws of Virginia, under which a plaintiff may recover in detinue, such a possession is a legal defence to a purchaser under such possessor, in the courts of Tennessee. Although the rule of limitation applicable to this species of property is, strictly speaking, a part of the lex fori of Virginia, yet as it constitutes the title of the vendor to the property, it is a bar to an action against the vendee in the courts of another slate, Shelby v. Guy, 345. —11 Wheaton, 361. 7. Notes of decisions in the courts of the United States upon the operation of the lex lopi 19 Vol. VI. — 73 2Y . 578 INDEX. LIEN. I. The lien of a judgment on the lands of a debtor, created by statute, and limited to a cer- tain period of time, is unaffected by the circumstance of the plaintiff not proceeding upon it (during that period) until a subsequent lien has been, obtained and carried into execution. [See note at the end of the case.] Rankin v. Scott, 504.— 12 Wheaton, 177. 8. Universal principle, that a prior lien is entitled to prior satisfaction out of the thing it binds, unless the lien be intrinsically defective, or is displaced by some act of the party holding it, vrhich shall postpone hirn at law or in equity. Ibid. 3. Mere delay in proceeding to execution is not such an act. Ibid, 4. Distinction created by statute, as to executions against personal chattels, and reasons on which it is founded. Ibid. 5. The lien of the government for duties, attaches upon the articles from the moment of their importation, and is not discharged by the unauthorized and illegal removal of the goods from the custody of the custom-house officers. United States v. TTiree Hundred and Fifty Chests of Tea, 593.— 12 Wheaton, 486. 6. Qusere, whether such lien can be enforced against a bona fide purchaser without notice that the duties were not paid or secured ? Ibid. 7. The lien for duties cannot, in any case, be enforced by a libel of information in the ad- miralty ; the revenue jurisdiction of the district courts, proceeding in rem, only extend- ing to cases of seizures for forfeitures under laws of impost, navigation, or trade of the United States. Ibid. 8. But a suit at common law may be instituted in the district or circuit courts, in the name of the United States, founded upon their legal right to recover the possession of goods upon which they have a lien for duties, or to recover damages for the illegal taking or detaining the same. Ibid. 9. A devise : " I give and devise to my beloved son, E. W. G., two third parts of that my ferry farm, so called," &c., " to him, the said E. W. G., and to his heirs and assigns for ever, he, my said son E. W. G., paying all my just debts out of said estate. And I do hereby order, and it is my will, that my son E. W. G. shall pay all my just debts out of the estate herein given to him as aforesaid," creates a charge upon the estate in the hands of the devisee. Potter v. Gardner, 606. — 12 Wheaton, 498. 10. A bona fide purchaser, who pays the purchase-money to a person authorized to sell, is not bound to loolc to its application, whether in the case of lands charged in the hands of an heir or devisee with the payment of debts, or lands devised to a trustee for the payment of debts. Ibid. II. But if the money be misapplied by the devisee or trustee, with the co-operation of the purchaser, he remains liable to the creditors for the sum so misapplied. Ibid. LIMITATION OF ACTIONS. 1. Although the statutes of limitations do not apply, in terms, to courts of equity, yet the period of limitation which takes away a right of entry, or an action of ejectment, has been held by analogy to bar relief in equity even where the period of limitation for ; writ of right, or other real action, had not expired. [See note to the preceding case.} Elmendorf v. Taylor, 47.-10 Wheaton, 152. 2; Where an adverse possession has continued for twenty years, it constitutes a complete bar in equity, wherever an ejectment would be barred if the plaintiff possessed a legal title. Ibid. 3. The terms "beyond seas," in the saving clause of a statute of limitations, are to be con- strued as equivalent to without the limits of the state where the statute is enacted. [See note at the end of the case.] Shelby v. Guy, 345. — 11 Wheaton, 361. 4. Quaere, how far this construction has been adopted by the courts of Tennessee ? Ibid. 5. Five years' bona fide possession of a slave constitutes a title, by the laws of Virginia, upon which the possessor may recover in detinue ; and this title may be set up by the vendee of such possessor in the courts of Tennessee, as a defence to a suit brought by a third party in those courts. Ibid. 6. An acknowledgment of a debt which will take a case out of the statute of limitations, must be unqualified and unconditional. [See note at the end of the case.] Wetzell v. Bussard, 322.-1 1 Wheaton, 309. 7. If il be connected with circumstances, which, in any manner, affect the claim, or if it be conditional, it may amount to a new assumpsit, for which the old debt is a sufficient consideration ; or, if it be construed to revive the original debt, that revival is condi- tional, and the performance of the condition, or a readiness to perform it, must be shown. Ibid. 8. Thus, where an action was brought, on a promise in writing to deliver a quantity of powder, and the srigioal, assumpsit being satisfactorily proved, the defendant relied INDEX. 579 LIMITATION OF ACTIONS. upon th« statute of limitations ; and one witness deposed, that the defendant told him, that the plaintiff need not have sued him ; for if he had come forward and settled cer- tain claims which defendant had against him, the defendant would have given him his powder : to another witness, defendant said, that he should be ready to deliver the powder whenever the plaintiff settled the suit, which Dr. E. had brought against him, &c. ; held, that those declarations did not amount to an unqualified and unconditional acknowledgoient of the debt, but that the plaintiff ought to have proved a performance, or a readiness to perform the condition on which the new promise was made. Ibid. 9. Where a suit was broiightin a state court upon a marshal's bond, under the act of April 10th, 1806, ch; 31, by a person injured by a breach of the condition of the bond, and the defendants set up as a defence to the action that the suit ought to have been brought in the name of the United States, and the court decided that it was well brought by the party injured in hisown ncnne : held, that the exemption here set up being merely as to the form of the action, and no question arising as to the legal liability of the defend- ants under the act of congress, this court had no authority to re-examine the judgment, so far as respected the construction of that part of the act, which provides, that suits on marshals' bonds « shall be commenced and prosecuted within six years after the said right of action shall have accrued, and not afterwards." Montgomery v. Hernandez, 475 12 Wheaton, 129. 10. Under the fourth section of the same act, although the condition of the marshal's bond is broken by his neglecting to bring money into court, directed to be so brought in, or to pay it over to the party, yet, if the proceedings be suspended by appeal, so that the party injured has no right to demand the money, or to sue for the recovery of it, his right of action has not accrued so as to bar it, if not commenced within six years. Ibid. 1 1. An acknowledgment of the debt by the personal representatives of tin original debtor, deceased, will not take the case out of the statute of Umitations. [See note at the end of the case.] Thompson v. Peters, 649. — 12 Wheaton, 565. 12. How far the acknowledgment of a debt will prevent the operation of the statute of limi- tations, and what will amount to a new promise. Notes of cases, 325. 18. Limitation of actions " beyond sea," << out of the state." Notes, 352. LIMITATION OF ACTIONS IN EQ,UITY CASES. Notes of cases, 46. LOCAL LAW. 1. In Kentucky, a survey must be presumed to be recorded at the expiration of three months from its date, and an entry dependent on it is entitled to all the notoriety of the survey as a matter of record. Elmendorfv. Taylor, 47. — 10 Wheaton, 152. 2. An entry in the following words, " W. D. enters eight thousand acres, beginning at the most southwestwardly corner of D. E.'s survey of eight thousand acres, between Floyd's Fork and Bull Skin ; thence along his westwardly line to the corner; thence the same course with J. K.'s line north two degrees west, nine hundred and sixty-four poles, to a survey of J. L. for twenty-two thousand acres ; thence with Lewis's line, and from the beginning south seven degrees west till a line parallel with the first line will include the quantity," is a valid entry. Ibid. 3. Such an entry is aided by the notoriety of the surveys, which it calls to adjoin, where those surveys had been made three months anterior to its date. Ibid. 4. The following entry, "L T. enters ten thousand acres of land, on part of a treasury war- rant, No. 9739, to be laid off in one or more surveys, lying between Stoner's fork and Kingston's fork, about six or seven miles nearly northwest of Harrod's lick, at two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Kingston's fork, on the east side of the branch, then running a line from said ash saplings, south forty-five degrees east, one thousand six hundred poles, thence extending from each end of this line north forty-five degrees east, down the branch, until a line nearly parallel to the beginning line shall include the quantity of vacant land, exclusive of prior claims," is riot a valid entry, there being no proof that the " two white-ash saplings from one root, with the letter K marked on each of them, standing at the forks of a west branch of Kingston's fork," had acquired sufficient notoriety to constitute a valid call for the beginning of an entry, without fur- ther aid than is afforded by the information that the land lies between those forks. M'Dowellv. Peyton, 184.— 10 Wheaton, 454. B. The local law of Maryland, as to the effect of evidence of the probate of a will of lands, 580 INDEX. LOCAL LAW. in an action of ejectment, is the same with the common law. Darby's lessee v. Mayer 185.— 10 Wheaton, 465. 6. The act of assembly of Maryland of 1798, s. 4, ch. 2, art. 3, does not extend to a will of lands, so as to make the probate conclusive evidence in an action of ejectment. Ibid. 7. By the laws of Tennessee, a will of lands in another state is not made evidence in an action of ejectment for lands in Tennessee. Ibid. 8. Qusere, Under the act of assembly of Maryland of 1729, ch. 8, how far the fact of pos- session not having accompanied a deed of assignment for the benefit of creditors would invalidate itl Brooks v. Marbury, 223.— 11 Wheaton, 78. 9. Under the same act of assembly, a copy of the deed is admissible in evidence, where the original is in the power of the party offering the copy. Ibid. 10. The title and claim of Charles lord Baltimore, his heirs and representatives, to the quit- rents reserved by the proprietary of the late province (now state) of Maryland, was extinguished by the agreement between the heirs, devisees, and personal representatives of the said lord Baltimore, and of his son and heir, Frederick lord Baltimore, made in I7S0, and confirmed by an act of the British parliament in 1781. Cassell v. Carroll, 249.-11 Wheaton, 134. 11. It seems, that a bona fide assignment, for a valuable consideration, made by a husband, of a debt actually and presently due to his wife, devests, in equity, the title of the wife. Ibid. 12. But, however this may be in general, the agreement made in 1780, including the quit- rents then actually due (if at all) to Louisa Browning, the daughter of Charles lord Baltimore, and assigning them to Henry Harford, the devisee of Frederick lord Balti- more, having been entered into in England, by the husband of Louisa Browning and her committee, (she being a lunatic,) and the consideration having actually gone bene- ficially for her use; and the whole transaction having been between British subjects, under the direction of the high court of chancery, and confirmed by an act of parlia- ment, transferred a complete legal and equitable title to the assignee. Ibid. 13. Question as to the sufficiency of the acknowledgment of a deed of lands in Ohio,— Hinde's Lessee v. Longworih, 270. — 11 Wheaton, 199. 14. The following entry is invalid for want of that certainty and precision which the local laws and decisions require : " January 27, 1783. J. C. L. enters twenty thousand acres of land on twenty treasury warrants, No. 8859, &c., beginning at the mouth of a creek falling into the main fork of Licking, on the north side, below some cedar cliffs, and about thirty-five miles above the Upper Blue Licks, and running from said begin- ning up the north side of Licking, and bounding with the same as far as will amount to ten miles when reduced to a straight line, thence extending from each end of said reduced line, a northerly course at right angles to the same for quantity." Littlepage V. Fowler, 280.-11 Wheaton, 215. 15. An entry calling for the land to lie on the east side of Slate creek, a southwest branch of the main fork of Licking, "beginning where a buffalo road crosseth said creek at the mouth of a branch emptying into said creek at the northeast side, it being the place of beginning for S. M.'s entry of twenty thousand acres," is defective in certainty and precision ; and its defects are not aided by the reference to S. M.'s entry for " twenty thousand acres, lying on the west side of Slate creek, southwest branch of Licking creek, beginning where the buffalo road crosses Slate creek, at the mouth of a branch, emptying in on the east side thereof; there are several cabins," &c., "to in- clude a quantity of fallen timber," &c. Taylor's Devisee v. Owing, 286. — 11 Whea- ton, 225. 16. Under the statute of limitations of Tennessee of 1797, ch. 43, s. 4, peaceable and unin- terrupted possession, claiming to hold the lands adverse to the claims of all other per- sons, for seven years, under a grant, or deed of conveyance founded upon a grant, gives a complete title to the person who has the possession. Piles v. Bouldin, 330. 11 Wheaton, 325. 17. The act of assembly of Virginia of 1779, ch. 13, s. 3, secured from escheat all the inte- rest acquired by aliens in real property, previous to the issuing of the patent, and left the rights acquired by them under the patent, to be determined by the general princi- ples of the common law. Governeur's Heirs v. Robertson, 334. — 11 Wheaton, 332. 18. The title of an alien thus acquired by patent in 1784, under the laws of Virginia, and subsequently confirmed to him by a legislative act of Kentucky in 1796, and to his heirs and their grantees by an act of the state in 1799, will overreach a grant made by Virginia to a citizen in 1785, and defeat the claims of all persons holding under such erant. Ibid. INDEX. 581 LOCAL LAW. 19. These legislative acts of Kentucky were valid, under the compact of 1789, between the slates of Virgitiia and Kentucky. Rid. SO. Five years' bona fide possession of a slave constitutes a title, by the laws of Virginia, upon which the possessor may recover in detinue ; and this title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brought by a third party in these courts. Shelby v. Guy, 345. — 11 Wheaton, 361. 21. Qusere, Whether a parol gift of slaves was valid by the laws of Virginia previous to the act of assembly of 1787 ? Ibid. 22. Qusere, Whether the doctrine of this court, as to the effect of the terms " beyond seas," in the saving clause of a statute of limitations, being equivalent to without the limits of the state where the statute is enacted, has been received in the local courts of Ten- nessee ? Ibid. 23. General principle as to the construction of local statutes in this court. Ibid. 24. In general, the validity of a patent for lands can only be impeached for causes anterior to its being issued, in a court of equity. But where the grant is absolutely void, aa where the state has no title or the ofHcer has no authority to issue the grant, the validity of the grant may be contested at law. Patterson v. Winn, 355. — 11 Wheaton, 380. 25. The laws of Georgia, in the year 1787, did not prohibit the issuing of a patent to any one person for more than one thousand acres of land. The proviso in the act of as- sembly of the 17th of February, 1783, limiting the quantity to that number, is exclu- sively confined to head-rights. Ibid. 26. Quaere, Whether the compact of 1789, between Virginia and Kentucky, restrained the legislature of Kentucky from prolonging the time for surveying one entry to the preju- dice of another ? Miller v. M'Intire, 382.— 1 1 Wheaton, 441. 27. By the construction of the act of Kentucky of 1797, granting further time for making surveys, with a proviso, allowing to infants, &c., three years after th^r several disabili- ties are removed, to complete surveys on their entries ; if any one or more of the joint owners be under the disability of infancy, &c., it brings the entry within the saving of the proviso, as to all of the other owners. Ibid. 28. Under the act of North Carolina of 1782, for the relief of the officers and soldiers in the continental line, &c., the commissioners having determined that the French liok was within the reservations of the statute, as public property, and having surveyed the said reservation in 1784, the same was protected from individual survey and location, although it exceeded the quantity of six hundred and forty acres. Edward^a lessee v. Darby, 521.— 12 Wheaton, 206. 29. The French lick reservation has not been since subjected to appropriation, by entry and survey, as vacant land, by any subsequent statute of North Carolina or Tennessee. Ibid. 30. This court adopts the local law of real property, as ascertained by the decisions of the state courts, whether those decisions are grounded on the construction of the statutes of the state, or form a part of the unwritten law of the state. [See note at the end of the case.] Jackson v. Chew, 489. — 13 Wheaton, 153. 31. A question in equity as to the title to a lot of land in the town of Lexington, Kentucky, reserved as public property, and claimed as having been appropriated by the plaintiff's ancestor. Bill dismissed under the circumstances of the case. M'Connell v. The Town of Lexington, 654.-12 Wheaton, 582. 32. The act of May 8th, 1820, ch. 595, "for the relief of the legal representatives of Henry Willis," did not authorize them to enter lands within the tract surveyed and laid off for the town of Claiborne, in the state of Alabama. Chotard v. Pope, 655. — 12 Whea- ton, 586. 33. On the construction of the statute of Virginia, emancipating slaves brought into the state in 1792, unless the owner removing with them should take a certain oath within sixty days after such removal : the fact of the oath having been taken may be pre- sumed by the lapse of twenty years, accompanied with possession. Mason v. Matilda, 65,'>.— 12 Wheaton, 590. 34. Under the statute of Virginia, giving to debts due on protested bills of exchange, the rank of judgment debts, a joint endorser, who has paid more than his proportion of the debt, has a right to satisfaction out of the assets of his co-endorser, with the priority of a judgment creditor. lAdderdale v. Robinson, 656. — 12 Wheaton, 594. 35. A concession of lands made by the Spanish authorities at Mobile in the year 1806, can- not be given in evidence to support an ejectment in the courts of the United States, the same not having been recorded, or passed upon by the board of commissioners, or re- 2y2 582 INDEX. LOCAL LAW. gister of the land office, established by the acts of congress, relating to land titjes in that countrj. De La Croix v. Chamberlain, 659. — 12 Wheaton, 599. 36. Usury. LOTTERY. 1. The scheme of a lottery contained a stationary prize for the first drawn number on each of twelve days, during which the drawing was to continue, and the first drawn number on the tenth day was to be entitled to thirty thousand dollars, payable in part by three hundred tickets, from Nos. 501 to 800 inclusive. No. 623, one of the three hundred tickets to be given in part payment of the said prize, was drawn first on that day, and decided to be entitled to the prize of thirty thousand dollars. After the drawing for the day was concluded, the managers reversed this decision, and awarded the prize to No. 4760, which was drawn next to No. 623, and had drawn a prize of twenty-five dollars, which they decreed to No. 623. [See note at the end of the case.] Brent v. Davis, 156.— 10 Wheaton, 395. $S. In drawing the same lottery, it was discovered on the last day, that the wheel of blanks and prizes contained one blank less than ought to have been put into it ; and to remedy this mistake an additional blank was thrown in. Ibid. 3. In an action brought by the managers against a person ivho had purchased the whole lottery, for the purchase-money, it was held, that these irregularities did not vitiate the drawing of the lottery, the conduct of the managers hiiying been bona fide, and the affirmance of their acts not furnishing any inducement to the repetition of the same mistake, nor any motive for misconduct of any description* Jbid* 4. Quaere, Whether the ticket No. 623, or No. 4760, Was entitled to the prize of thirty thou- sand dollars ? Ibid. 5. City of Washington. 6. Notes of cases decided relative to the law of lotteries, 162. MANDAMUS. 1. Mandamus. On a rule on the judges of the circuit court of the district of Maryland, to show cause why a mandamus should not be awarded, commanding them to issue exe- cution on a judgment obtained in that court, which had been removed by writ of error to this court, it was held : that an injunction may issue, on a judgment obtained on the law side of the circuit court, to stay proceedings on the judgment, although a writ of error had been issued in the case from the supreme court. Parker v. TTie Judges of the Circuit Court of Maryland, 644. — 12 Wheaton, 561. 2. An injunction awarded by a district judge, expires at the next term of the circuit court, unless continued by order of the court. Ibid. 3. Where the defendant in the injunction, and the court supposed the injunction had not expired, and frequent applications had been made to the court to dissolve it, which were refused, this was under the circumstances considered as equivalent to renewing the injunction. Mandamus refused. [See note at the end of the case.] Ibid. 4. Notes of cases decided on the law of mandamus, 647. MANDATE, Admiralty practice. MARRIAGE SETTLEMENT. 1. It seems, that a bona fide assignment, for a valuable consideration, made by a husband, of a debt actually and presently due to his wife, devests, in equity, the title of the wife. Cassell V. Carroll, 249.— 11 Wheaton, 134. 2. But, however this may be in general, the agreement made in 1780, including the quit- rents then actually due (if at all) to Louisa Browning, the daughter of Charles lord Baltimore, and assigning them to Henry Harford, the devisee of Frederick lord Balti- more, having been entered into in England, by the husband of Louisa Browning and her committee, (she being a lunatic,) and the consideration having actually gone bene- ficially for her use ; and the whole transaction having been between British subjects, under the direction of the high court of chancery, and confirmed by an act of parlia- ment, transferred a complete legal and equitable title to the assignee. Ibid. VIARYLAND aUIT-RENTS. The title and claim of Charles lord Baltimore, his heirs and representatives, to the quit- rents reserved by the proprietary of the late province (now state) of Maryland, were INDEX. 583 MARYLAND aUIT-RENTS. extinguished by the agreement between the heirs, devisees, and personal representatives of the said lord Baltimore, and of his son and heir, Fredericl^ lord Baltimore, made in 17S0, and confirmed by an act of the British parliament in 1781. Cassell v. Car- roll, 249 U Wheaton, 134. MESNE PROFITS. I. The action for mesne profits may be maintained against him who was the landlord in fact, who received the rents and profits, and resisted the recovery in the ejectment suit, although he was not a party to that suit, and did not take upon himself the defence thereof upon the record, but another did as landlord. [See note at the end of the case.] Chirac v. Reinicker, 310.— 11 Wheaton, 280. S. A recovery in ejectment is conclusive evidence in an action for mesne profits against the tenant in possession, but not in relation to third persons. But where the action is brought against the landlord in fact, the record, in the ejectment suit, is admissible to show the possession of the plaintiff connected with his title, although it is not conclu- sive upon the defendant in the same manner as if he had been a party on the record. Ibid. MILITIA. I. The authority to decide whether the exigencies contemplated in the constitution of the United States, and the act of congress of 1795, ch. 101, in which the president has authority to call forth the militia, " to execute the laws of the union, suppress insurrec- tions, and repel invasions," have arisen, is exclusively vested in the president, and his decision is conclusive upon all other persons. [See note at the end of the case.] Mar- tin v. Matt, 410.— 12 Wheaton, 19. 2. Although a militia-man, who refused to obey the orders of the president calling him into the public service under the act of 1795, is not, in the sense of that act, " employed in the service of the United States," so as to be subject to the rules and articles of war ; yet he is liable to be tried for the ofience under the fifth section of the same act, by a court-martial called under the authority of the United States. Ibid. 3. Where, in an action of replevin, the defendant, being a deputy marshal of the United States, avowed and justified the taking the plaintiff's goods, by virtue of a warrant issued to the marshal of the district, to collect a fine imposed on him by the judgment of a court-martial, described as a general court-martial composed of officers of the militia of the state of New York, in the service of the United States, (six in number, and naming ttiem,) duly organized and convened, by general orders, issued pursuant to the act of congress of February 28, 1795, ch. 101, for the trial of those of the tnilitia of the state of New York, ordered into the service of the United States in the third military district, who had refused to rendezvous and enter into the service of the United States, in obedience to the orders of the commander-in-chief of the state of New York, of the 4th and 29th of August, 1814, issued in compliance with the requisition of the president made in pursuance of the same act of congress, and alleging that the plaintiff, being a private in the militia, neglected and refused to rendezvous, &c., and was regularly tried by the said general court-martial, and duly convicted of the «aid delinquency: held, that the avowry was good. Ibid. 4. It is not necessary that the court-martial for the trial of delinquents, under the act of 1795, should be composed of the precise number of officers required by the rules and articles of war for the composition of general courts-martial in the army. Ibid. 5. A court-martial regularly organized under the act of 1795, does not expire with the ter- mination of a war then existing. Ibid. NEUTRALITY. Cases on the construction of the act of congress of April 20, 1818, to prohibit violations of the neutrality of the United States, 587. PATENTS FOR LANDS. 1. In general, the validity of a patent for lands can be impeached, for causes anterior to its being issued, in a court of equity only. But where the grant is absolutely void, as being issued without authority, or against the positive prohibitions of the statute, its validity of the grant may be contested at law. [See note at the end of the case.] Patterson v. Winn, 355.-11 Wheaton, 380. 3. The laws of Georgia, in the year 1787, did not prohibit the issuing of a patent to any one person fur more than one thousand acres of land. The proviso in the act of assem- 584 INDEX. PATENTS FOR LANDS. bly of the 17th of February, 1783, limiting the quantity to that number, is exclusively confined to head-rights. Ibid. PATENTS FOR NEW AND USEFUL INVENTIONS. 1. C, having obtained a patent for a new and useful improvement, to wit, a machine for making watch-chains, brought an action, under the third section of the patent act of 1800, c. 179, for a violation of his patent-right, against B ; and on the trial, an agree- ment was proved, made by the defendant with C, to purchase of him all the watch- chains, not exceeding five gross a week, which he might be able to manufacture within six months, and an agreement on the part of C to devote his whole lime and attention to the manufacture of the watch-chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privilege secured to the defendant of purchasing the whole quantity which it might be practicable for C to make : and it was proved that the machine used by C, with the knowledge and consent of the defendant, in the manu- facture, was the same with that invented by the plaintifi', and that all the watch-chains thus made by C were delivered to the defendant according to the contract : held, that if the contract was real and not colourable, and if the defendant had no other connec- tion with C than that which grew out of the contract, it did not amount to a breach of the plaintiff's patent-right. Keplinger v. De Young, 135. — 10 Wheaton, 358. 2. Such a contract, connected with evidence irom which the jury might legally infer, either that the machine which was to be employed in the manufacture of the patented article was owned wholly or in part by the defendant, or that it was hired to the defendant for six months, under colour of a sale of the articles to be manufactured with it, and with intent to invade the plaintiff's patent-right, would amount to a breach of his right. Ibid. 3. Effects of contracts to purchase patented articles from a manufacturer who infringes the patent-right. Ibid. PAYMENT. 1. In general, a payment received in forged paper, qr in any base coin, is not good ; and if there be no negligence in the party, be may recover back the consideration paid for them, or sue upon his original demand. United States Bank v. The Bank of Georgia, 120.— 10 Wheaton, 333. 2. But this principle does not apply to a payment made bona fide to a bank, in its own notes, which are received as cash, and afterwards discovered to be forged. Ibid. 3. In case of such a payment upon general account, an action may be maintained by the party paying the notes, if there is a balance due him from the bank upon their general account, either upon an insimul computassent, or as for money had and received. Ibid. 4. Bank-notes are a part of the currency of the country ; they pass as money, and are a good tender, unless specially objected to. Ibid PIRACY. 1. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war ; for they are hostes humani generis. The Marianna Flora,201. — 11 Wheaton, 1. 2. A question of probable cause of seizure, under the piracy acts of the 3d of March, 1819, c. 75, and the 15th of May, 1820, t. 112. [See note at the end of the case.] The Palmyra, 397.— 12 Wheaton, 1. 3. In such a case, although the crew may be protected by a commission bona fide received, and acted under, from the consequences attaching to the offence of piracy, by the gene- ral law of nations, although such commission was irregularly issued ; yet, if the defects in the commission be such as, connected with the insubordination and predatory spirit of the crew, to excite a justly founded suspicion, it is sufficient, under the act of con- gress, to justify the captors for bringing in the vessel for adjudication, and to exempt them from costs and damages. [See note at the end of the case.] Ibid. PLEADING. 1. In a plea of justification by the marshal, for not levying an execution, setting forth a remission by the secretary of the treasury, of the forfeiture or penalty, on which the judgment was obtained, it is not necessary to set forth the statement of facts upon which the remission was founded. United States v. Morris, 90. — 10 Wheaton, 246. a. A defective declaration may be aided by the plea, and a defective plea by the replication. Ibid. INDEX. 585 PLEADING. 3. In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount ; but no formal terms are prescribed in which the averment is to be made. Day v. Chism, 181. — 10 Wheaton, 449. 4. Where it was averred in such a declaration, " that the said had not a good and suffi- cient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by due course of law," it was held sufficient as a substantial averment of an eviction by title paramount. Ibid. 5. Where the plaintiffs declared in covenant both as heirs and devisees, without showing in particular how they were heirs, and without setting out the will, it was held not to be fatal on general demurrer. Ibid. 6. Such a defect may be amended under the thirty-second section of the judiciary act of 1789, c. 20. Ibid. 7. There must be sufficient equity apparent on the face of the bill to warrant the court in granting the relief prayed ; and the material facts on which the plaintiff relies must be so distinctly alleged as to put them in issue. [See note at the end of the case.] Harding v. Handy, 336.— 11 Wheaton, 103. 8. Variances between the writ and declaration cannot be taken advantage of in the court below, after plea pleaded. [See note at the end of the case.] Chirac v. Reinicker, 310. —11 Wheaton, 280. 9. Quasre, Whether by the modern practice such variances can be taken advantage of at all ? Ibid. 10. Where there is a special agreement open and subsisting at the time the cause of action arises, a general indebitatus assumpsit cannot be maintained. [See note at the end of the case.] Perkins v. Hart, 287. — 11 Wheaton, 237. 11. But, if the agreement has been wholly jierformed, or if its further execution has been prevented by the act of the defendant, or by the consent of both parties ; or, if the con- tract has been fully performed in respect to any one distinct subject included in it ; the plaintiff may recover upon a general indebitatus assumpsit. Ibid. 12. It seems, that, as against the maker of a promissory note, or against the acceptor of a bill of exchange, payable at a particular place, no averment in the declaration, or proof at the trial, of a demand of payment at the place designated, is necessary. [See note at the end of the case.] Bank of the United States v. Smith, 257. — 11 Wheaton, 171. 13. But, as against the endorser of a bill or note, such an averment and proof is, in general, necessary. Ibid. 14. Circumstances distinguishing a count in detinue from a count in trover. Shelby v. Guy, 345.-11 Wheaton, 361. 15. In suits for an individual thing, a right of action survives to a tenant in common. Ibid. POST-OFFICE DEPARTMENT AND POSTMASTER-GENERAL. 1. The circuit courts of the union have jurisdiction, under the constitution, and the acts of April 30th, 1810, ch. 262, ». 29, and of March 3d, 1815, ch. 782, s. 4, of suits brought in the name of " the postmaster-general of the United States," on bonds given to the postmaster-general by a deputy postmaster, conditioned « to pay all money* that shall come to bis hands for the postages of whatever is by law chargeable with postage, to the postmaster-general of the United States for the time being, deduct- ing only the commission and allowances made by law for his caro, trouble, and charges, in managing the said office," &c. The Postmaster-general v. Early, 480. — 12 Whea- ton, 136. 2. The postmaster-general has authority to take such a bond, under the different acts esta- blishing and regulating the post-office department, and particularly under the act of April 30th, 1810, ch. 262, s. 29, 42. [See note at the end of the case.] Ibid. 3. IVotes of cases as to the post-office and postmaster-general, 488. PRACTICE. 1. Although a consul of a foreign nation may claim, in the admiralty, for unknown subjects of his nation, yet restitution cannot be decreed without specific proof of the individual proprietary interest. The Antelope,30 10 Wheaton, 66. 3. Where the court is equally divided, the decree of the court below is of course affirmed, so far as the point of division goes. Ibid. 3. A question of fact under the slave trade acts, as to a vessel claimed by a Spanish subject, as having been engaged in the trade under the laws of his own country, but proved to have been originally equipped in the United States for the voyage in question. T/ie Plattsburgh. 43.— 10 Wheaton, 133. Vol. VI.— 74 586 INDEX. PRA.CTICE. 4. Under the slave trade aet of 1794, c. U, the forfeiture attaches where the original voyage is commenced in thre United States ; whether the vessel belong to citizens or foreigners, and whether the act is done suo jure, or by an agent for the benefit of another person who is not a citizen or resident of the United States. Ibid. 5. Circumstances of a pretended transfer to a Spanish subject, and the commencement of a new voyage in a Spanish port, held not to be sufficient to break the continuity of the original adventure, and to avoid the forfeiture. Ibid. 6. It is not necessary, to incur the forfeiture under the slave trade acts, that the equipments for the voyage should be completed. It is sufficient if any preparations are made for the unlawful purpose. Ibid. 7. Congress has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States ; and the states have no authority to control those proceed- ings, except so far as the state process acts are adopted by congress, dr by the courts of the United States under the authority of congress. [See note at the end of the case.] Wayman v. Southard, 1.— 10 Wheaton, 1. 8. The proceedings on executions, arid other process, in the courts of the United States, in suits at common law, are to be the same in each state, respectively, as were used in the supreme court of the state in September, 1789, subject to such alterations and additions as the said courts of the United States may make, or as the supreme court of the United States shall prescribe by rule to the other courts. Ibid. 9. A state law regulating executions, enacted subsequent to September, 1789, is not appli- cable to executions issuing on judgments rendered by the courts of the United States, unless expressly adopted by the regulations and rules of those courts. Ibid. 10. The thirty-fourth section of the judiciary act of 1789, c. 20, which provides, "that the laws of the several states, except," &c. " shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply," does not apply to the process and practice of the courts. It is a mere legislative recognition uf the principles of universal jurisprudence, as to the operation of the lex loci. [See note at the end of the case.] Ibid. 11. The statutes of Kentucky concerning executions, which require the plaintiff to endorse on tlie execution that bank-notes of the Bank of Kentucky, or notes of the Bank of the Commonwealth of Kentucky, will be deceived in payment, and, on his refusal, author- ize the defendant to give a replevin bond for the debt, payable in two years, are not applicable to executions issuing on judgments rendered by the courts of the United States. Ibid. 12. The laws of the United States authorize the courts of the union so to alter the form of the process of execution used in the supreme courts of the states in 1789, as to sub- ject to execution lands and other property, qot thus subject by the state laws in force at that time. [See note at the end of the case.] Bank of the United States v. Hal- stead, 22.— 10 Wheaton, 51. 13. Where the manager of a lottery, drawn in pursuance of an ordinance of the corporation of the city of Washington, gave a bond to the corporation, conditioned " truly and im- partially to execute the duty and authority vested in him by the ordinance :" held, that the person entitled to a prize ticket bad no right to bring a suit for the prize against the manager, upon his bond, in the name of the corporation, without their consent. The Corporation of Washington v. Young, 163. — 10 Wheaton, 406. 14. An appeal under the judiciary acts of 1789, ch. 20, s. 22, and of 1803, ch. 353, prayed for, and allowed within five years, is valid, although the security was not given until after the lapse of five years. The Dos Hermanos, 109. — 10 Wheaton, 306. 15. The mode of taking the security, and the time for perfecting it, are within the discretion of the court below, and this court will not interfere with the exercise of that discretion. Hid. 16. Although the judge may refuse to declare the law to the jury on a mere hypothetical question propounded by the counsel, and not warranted by the evidence in the cause, yet if he proceeds to state the law upon such question, and states it erroneously, his opinion may be revised in the court above; and if it be such as may have had an infiu- \ ence on the jury, their verdict will be set aside. Etting v. The Bank of the United \ States, 216.— 11 Wheaton, 59. \l7. Where the court is equally divided in opinion upon a writ of error, the judgment of the court below is to be affirmed. Ibid. 18. Amendments of the pleading in admiralty causes may he allowed in the appellate court. The Uarianna Flora, 201.— 11 Wheaton, 1. 19. If the amendment is made in the circuit court, the cause is heard and adjudged by that INDEX. 587 PRACTICE. court, and by this court (upon appeal) on the new allegation ; but if the amendment is allowed by this court, the cause is remanded to the circuit court to permit the amend- ment to be made. Jbid. 20. The decree, in equity, must be according to the allegata, as well as to the probata. There must be sufficient equity^apparent on the face of the bill to warrant the court in granting the relief prayed ; and the material facts on which the plaintiiT relies must be so distinctly alleged, as to put them distinctly in issue. Harding v. Handy, 236. — 1 1 Wheaton, 103. 21. Rules of practice on exceptions to the master's report. Ibid. 22. In a suit in equity brought by the heirs-at-law to set aside a conveyance obtained from their ancestor by fraud and imposition, a final decree for the sale of the property cannot be pronounced until all the heirs are brought before the court as parties, if they are within the jurisdiction; Ibid. 23. If all the heirs cannot be brought before the court, the undivided interest of those who are made parties may be sold. Ibid. 24. Where a case is certified to this court upon a division of opinion of the judges below, and the points reserved upon which they were divided, are too imperfectly stated to enable this court to pronounce any opinion upon them, this court will neither award a venire facias de novo, nor certify any opinion to the court below upon the points re- served, but will merely certify that they are too imperfectly stated. Perkins v. Hart, 287.— 11 Wheaton, 237. 25. An action for mesne profits may be maintained by the landlord in fact, who is in pos- session of the land by means of his tenants, and by his acts, commands, or co-opera- tion, aids in withholding the possession from the plaintiff. Chirac v. Reinicker, 310. —11 Wheaton, 280. 26. Inconvenient practice of bringing the whole evidence, instead of the facts proved by the evidence, for review before this court, by bill of exceptions or otherwise. The party cannot, by such a practice, take advantage of any omission in the judge's charge, under a general exception to it. If he wishes the instruction of the court to the jury on any point omitted in the charge, he must suggest it, and request the judge's opinion on it. Armstrong v. Tokr, 298. — 11 Wheaton, 258. 27. In examining the admissibility of testimony in the court above, the party excepting is to be confined to the specific objection taken at the trial. Hinde v. Longworth, 270. — 11 Wheaton, 199. 26. Amendments to the pleadings are matters in the discretion of the court below. Error will not lie to this court on the allowance or refusal of such amendments. Chirac v. Reinicker, 310. — 11 Wheaton, 280. 29. Variances between the writ and declaration are, in general, matters proper for pleas in abatement. Ibid. 30. Quaere, Whether by the modern practice of the courts, variances between the writ and declaration can be taken advantage of by the defendant? Ibid. 31. Such variances cannot be taken advantage of except upon oyer of the original writ, granted in some proper stage of the cause. Rid. 32. Marriage of the plalntiif pending the suit, does not, of itself, abate the suit. The objec- tion can only be made available by plea in abatement. Ibid. 33. On a libel in personam for damages, if the court decrees that damages be recovered, and that commissioners be appointed, to ascertain the amount thereof, no appeal will lie from such a decree until 'the commissioners have made their report; this not being a final decree. Chace v. Vasquez, 373 11 Wheaton, 429. 34. It is not the practice of a court of equity to confirm an award, so far as it extends, and to supply omissions by decree of the court ; it either enforces the award as it is made, or sets it aside if in any respect defective. Camochan v. Christie, 382.— 1 1 Wheaton, 446. 35. Where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill filed by the defendant. Ibid. 36. Explanation of former decree of this court, 10 Wheaton, 66, 6 Cond. Rep. 30. T%e Antehpe, 368.-11 Wheaton, 413. 37. Where there is a joint judgment against several defendants, and one only sues out the writ of error without joining the others, it is irregular ; but if the others refuse to join in it, qusere, whether the plaintiff may not have summons and severance ? Williams V. The Bank of the United States, 368.— 11 Wheaton, 414. 38. Where, in a special verdict, the essential facts are not distinctly found by the jury • although there is sufficient evidence to establish them, this court will not render a judg- 588 INDEX. PRACTICE. ment upon such an imperfect special verdict, but will remand the cause to the court be- low, with directions to award a venire facias de novo. Barnes v. Williams, 369. — 11 Wheaton, 415. 39. The general rule of law, requiring proof of the title of the holders of a note, may be modified by a rule of court, dispensing with proof of the execution of the note, unless the party shall annex to his plea an affidavit that the note was not executed by him. Mills V. JTie Bank of the United States, 373.— 11 Wheaton, 431. 40. An objection to the competency of a witness, on the ground of interest, cannot be taken in the supreme court on a hearing on the appeal, where the witness had been admitted without objection, in the district and circuit court. The Palmyra, 397. — 12 Whea- ton, 1, 41. Where the burden of proof of certain specific defences set up by the defendant is on him, and the evidence presents contested facts, an absolute direction from the courl, that the matters produced and read in evidence on the part of the defendant were sufficient In law to maintain the issue on his part, and that the jury ought to render their verdict in favour of the defendant, is erroneous; and a judgment rendered upon a verdict pur- porting to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions taken at a trial before a jury upon the mat- ters in issue, no such trial ever having taken place, and the case having assumed that shape by the agreement of the parties, in order to take the opinion of the court upon certain questions of law. The United States v. Tillotson, 507. — 13 Wheaton, 180. 43. This court cannot take jurisdiction of a question, on which the opinions of the judges of the circuit courts are opposed, where the division of opinions arises upon some pro- ceedings subsequent to the decision of the cause in that court. Devereaiuc v. Marr, 523.— 13 Wheaton, 212. 43. The opinion of the court, or the reasons given for its judgment, (unless in the case of instruction to the jury, spread upon the record by a bill of exceptions,) form no part of the record within the meaning of the above twenty-fifth section. Nor are they made a part of the record of Tennessee, by the local law of that state, requiring the judges to file their opinions in writing among the papers in the cause. Williams v. Norris, 462.— 12 Wheaton, 117. 44. No orders in the state court, after the removal of the record into this court, (not made by way of amendment, but introducing new matter,) can be brought into the record here. The cause must be heard and determined upon the record as it stood when re- moved. Ibid. 45. The judgment of the highest court of law of a state, deciding in favour of the validity of a statute of a state, drawn in question on the ground of its being repugnant to the constitution of the United States, is not a final judgment within the twenty-fifth sec- tion of the judiciary act of 1789, ch. 20, if the suit has been remanded to the inferior state court, where it originated, for further procoeedings, not inconsistent with the judg- ment of the highest court. Winn v. Jackson, 479. — 12 Wheaton, 135. 46. No judgment or decree can be rendered directly against the United States for costs and expenses. The Antelope, 629. — 12 Wheaton, 546, 47. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. Jbid. 48. An injunction out of the circuit court, to stay proceedings on a judgment at law in that court, may issue, notwithstanding the pendency of a writ of error on the judgment in this court. Parker v. Judges of the Circuit Court of Maryland, 644. — 12 Whea- ton, 561. 49. An injunction issued by order of the district judge, expires at the next term of the court, unless continued by the court ; but the denial of several successive motions to dissolve, the injunction, may, under circumstances, be considered as equivalent to an order for renewing it. Ibid. 50. The bail is fixed by the death of the principal after the return of the ca. sa. and before the return of the scire facias ; and the bail is not entitled to an exoneretur in such u case. Davidson v. Taylor, 660 — 12 Wheaton, 604. 51. Notes of cases of practice, 1 Cond. Rep. 141. 52. Admiralty. 53. Admiralty practice. 54. Chancery. INDEX. 589 PmNCIPAL AND SURETY. Notes of cases on the law of principal and surety, 268. PRIORITY OF, THE UNITED STATES. Notes of cases decided since the reports of Mr. Wheaton, 603. PRIZE. 1. Seizures made jure belli, by non-commissioned captors, are made for the government, and no title of prize can be derived but from the prize acts. The Dos Hermanoa, 109. — 10 Wheaton, 306. 2. A non-commissioned captor can only proceed in the prize court as for salvage, the amount of which is discretionary. Ibid. 3. The appellate court will not interfere in the exercise of this discretion, as to the amount of salvage allowed, unless in a very clear case of mistake. Ibid. 4. In prize proceedings, amendments are ihade in the appellate court, either as to the form or substance, as by filing a new article to the libel ; the parties being permitted, when- ever public justice and the merits require it, to introduce new allegations and new proofs. The Marianna Flora, 201. — 11 Wheaton, 1. 5. If the amendment is made in the circuit court, the cause is heard and adjudicated by that court, and by this court, (upon appeal,) on the new allegation ; but if the amend- ment is allowed by this court, the cause is remanded to the circuit court, with direc- tions to permit the amendment to be made. Ibid. 6. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war ; for they are the common enemies of mankind, and, as such, are liable to the extreme rights of war. Ibid. 7. The right of visitation and search does not exist in time of peace ; but ships of war sail- ing under the authority of their government in time of peace, have a right to approach otiier vessels at sea for the purpose of ascertaining their real characters, so far as the same can be done without the exercise of the right of visitation and search. Ibid. 8. No vessel is bound to await the approach of armed ships under such circumstances ; but such vessel cannot lawfully prevent their approach, by the use of force, upon the mere suspicion of danger. ■ Ibid. 9. Where an aggression was committed by a foreign armed merchant vessel, on a public ship of the United States, under the above circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing in for adjudication, into a port of this country, the offending vessel. Ibid. 10. Under the act of the 3d of March, 1819, ch. 75, an attack made upon a vessel of the United States, by an armed vessel, with the avowed intention of repeUing the approach of the former, or of crippling or destroying her, upon a mistaken supposition that she was a piratical cruiser, and without a piratical or felonious intent, or the purpose of wanton plunder, is not a piratical aggression. Ibid. 11. Nor is an armed ship, captured under such circumstances, liable to lonfiscation as for a hostile aggression under the general law of nations. Ibid. 12. American ships offending against our own laws, may be seized upon the ocean, and foreign ships thus olfending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our courts for adjudication. Ibid. 13. But, in such cases the party seizes at his peril, and is liable to costs and damages if he fails to establish the forfeiture. Ibid. 14. Ships of war sailing under the authority of their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real charac- ters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. Ibid. 15. Admiralty. PROBABLE CAUSE OF SEIZURE. 1. A question of probable cause of seizure, under the piracy acts of the 3d of March, 1819, ch. 75, and the 15th of May, 1820, ch. 1 12. [See note at the end of the case.] The Palmyra, 397.— 12 Wheaton, 1. 2. In such a case, although the crew may be protected by a commission bona fide received, and acted under, from the consequences attaching to the offence of piracy by the gene- ral law of nations, although such commission was irregularly issued ; yet, if the defects in the commission be such as, connected with the insubordination and predatory spirit of the crew, to excite a justly founded suspicion, it is sufficient, under the act of con- 2Z 590 , INDEX. PROBABLE CAUSE OF SEIZURE. gress, to justify the captors for bringing in the vessel for adjudication, and to excrflpt them from costs and damages. [See note at the end of the case.] Ibid. 3. Probable cause of seizure a bar to the claim for damages. Ibid. 4. Although probable cause of seizure will not exempt from costs and damages in seizures under mere municipal statutes, unless expressly made a ground of justification by thu law itself, this principle does not extend to captures jure belli, nor to maritime torts generally, nor to acts of congress authorizing the exercise of belligerent rights to a limited extent, such as the piracy acts of the 3d of March, 1819, eh. 75, and the 1.5th of May, 1820, ch. 112. [See note at the end of the case.] Ibid. PROBATE OF A WILL. 1. The probate of a will in one state is of no validity as affecting the title of laiids in ano- ther state. MCormick v. Sullivant, 71.— 10 Wheaton, 192. 2. B} the laws of Tennessee, the probate of a will of lands in another state Is not made evidence in an ejectment for lands in Tennessee. Darby's lessee v. Mayer, 185. — 10 Wheaton, 465. 3. The local law of Maryland, as to the effect of evidence of the probate of a will of lands, in an action of ejectment, is the same with the common law. [See note at the end of the case.] Ibid. 4. A duly certified copy of a will of lands, and the probate thereof, in the orphan's court of Maryland, is not evidence in an action of ejectment, of a devise of lands in Tennessee. Ibid. 5. Notes of cases on probate of wills, 189. PROCESS. The act of assembly of Kentucky of the 21st of December, 1821, which prohibits the sale of property taken under execution for less than three-fourths of its appraised value, without the consent of its owner, does not appfy to a venditioni exponas issued out of the circuit court for the district of Kentucky. Bank erf the Urrited States v. Halstead, 22.— 10 Wheaton, 51. PROMISSORY NOTES. Notes of cases on the notice of non-payment of promissory notes, 264, 379. PUBLIC OFFICERS. 1. An omission of the proper officer to recall a delinquent paymaster under the injunctibns of the fourth section of the act of the 24th of April, 1816, ch. 69, does not discharge his surety. [See note at the end of the case.] United States v. Yamandt, 364. — 11 Wheaton, 184. 2. The provisions requiring the delinquent paymaster to be recalled, and a new appointment to be made in his place, are merely directory, and intended for the security of the government ; but form no part of the contract with the surety. Ibid. 3. The statute not removing from office the delinquent paymaster, ipso facto, but only mak- ing it the duly of the proper officer to remove him ; the circumstance of new funds being placed in his hands after his delinquency, does not discharge the surety. Ibid. REMISSION OF PENALTIES AND FORFEITURES. Notes of cases upon the remission of penalties and forfeitures by the secretary of the trea- sury, 107. REVOLT. 1. Although the crimes act of 1790, ch. 36, s. 12, does not define the offence of endeavour- ing to make a revolt, it is competent for the court to give a judicial dennuion of it. Vnited States v. Kelly, 370.— 1 1 Wheaton, 41 7. 2. The offence consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legitimate authority of the commander, with intent to remove him from his command, or against his will to take possession of the vessel by assuming the government and navigation of her, or by transferring their obedience from the lawful commander to some other person. [See note at the end of the case.] Ibid. 9 Notes of cases, 571. INDEX. 591 SALVAGE. Freight is not a charge upon the salvage of cargo in the hands of underwriters, whether the assured is owner of the ship or not. The Columbian Insurance Company v. Cailett, 541.-12 Wheaton, 383. SEAMEN'S WAGES. Admiralty. SEIZURE. 1. In order to constitute a valid seizure, so as to entitle the party to the proceeds of a for- feiture, there must be an open, visible possession claimed, and authority exercised under the seizure. The Josefa Segunda, 111. — 10 Wheaton, 312. 2. A seizure, once voluntarily abandoned, loses its validity. Ibid. 3. A seizure, not followed by an actual prosecution, or by a claim, in the district court, before a hearing on the merits, insisting on the benefit of the seizure, becomes a nullity. Ibid. 4. American ships offending against our own laws, may be seized upon the ocean ; and fo- reign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. The Marianna Flora, 201.— 11 Wheaton, 1. 5. But, in such cases, the party seizes at his peril, and is liable to costs and damages if he fails to establish the forfeiture. Ibid. SLAVES. 1. An absolute bequest of certain slaves to P. H. is qualified by a subsequent limitation over, that if either of the testator's grandchildren, P. H., or J. D. A., should die without a lawful heir of their bodies, that the other should heir its estate, which converted the previous estate into an estate tail ; and there being no words in the will which re- strained the dying without issue tp the time of the death of the legatee, the limitation over was heM to be on a contingency too remote. Williamson v. Daniel, 651. — 12 Wheaton, 568. 2. In Georgia the rule of partus sequitur ventrem is universally followed, unless there be something in the terms of the instrument which disposes of the mother, separating the issue from her. Ibid. 3. Notes of cases, 652, SLAVE TEADE. 1. The African slave trade is contrary to the law of nature, but is not prohibited by the positive law of nations. [See note at the end of the case.] The Antelope, 30. — 10 Wheaton, 66. 2. Although the slave tri^de is now prohibited by the laws of most civilized nations, it may still be lawfully carried on by the subjects of those nations who have not prohibited it by municipal acts or treaties. Rid. 3. The slave trade is not piracy, unless made so by the treaties or statutes of the nation to whom the party belongs. Ibid. 4. The right of visitation and search does not exist in time of peace. A vessel engaged in the slave trade, even if prohibited by the laws of the country to which it belongs, cannot, for that cause alone, be seized on the high seas, and brought in for adjudication, in time of peace, in the courts of another country. But if the laws of that country be violated, or the proceeding be authorized by treaty, the act of capture is not in that case unlaw- ful. Ibid. 6. It seems, that in case of such a seizure, possession of Africans is not a sufScient evidence of property, and that the onus proband! is thrown upon the claimant, to show that the possession was lawfully acquired. Ibid. 6. Africans who are first captured by a belligerent privateer, fitted out in violation of our neutrality, or by a pirate, and then recaptured and brought into the ports of the United States, under a reasonable suspicion that a violation of the slave trade acts was in- tended, are not to be restored without full proof of the proprietary interest ; for in such a case the capture is lawful. And whether, in such a case, restitution ought to be de- creed at all, was a question on which the court was equally divided. Ibid. 7. The district courts have jurisdiction, under the slave trade acts, to determine who are the actual captors, under a state law made in pursuance of the fourth section of the slave trade act of 1807, c. 77, and directing the proceeds of the sale of the negroes to be paid, 592 INDEX. SLAVE TRADE. " one moiety for the use of the commanding officer of the capturing vessel," «ii> The Josefa Segunda, 111.— 10 Wheaton, 312. Ibv 8. In order to constitute a valid seizure, so as to entitle the party to the proceedwaf a for- feiture, there must be an open, visible possession claimed, and authority exercised under the seizure. Ibid. 9. A seizure, once voluntarily abandoned, loses its validity. Ibid. 10. A seizure not followed by an actual prosecution, or by a claim, in the district court, before a hearing on the merits, insisting on the benefit of the seizure, becomes a nullity. Ibid. "• ' 11. Under the seventh section of the slave trade act of 1807, c. 77, the entire p the vessel are forfeited to the use of the United States, unless the seizure b armed vessels of the navy, or by revenue cutters, in which case distribu.iL_ made in the same manner as prizes taken from the enemy. Ibid. 12. Under the act of the state of Louisiana of the 13th of March, 1818, passedic;. into eifect the fourth section of the slave trade act of congress of 1807, c. 77, U> .rec^ng negroes imported contrary to the act to be sold, and the proceeds to bo .>aid, "one moiety for the use of the commanding officer of the capturing vessel, an^ the other moiety to the treasurer of the charily hospital of New Orleans, for the use and benefit of the said hospital :" no other person is entitled to the first moiety than the command- ing officer of the armed vessel of the navy, or revenue cutter, who may have made the seizure, under the seventh section of the act of congress. Ibid. 13. Upon an indictment under the slave trade act of the 20th of April, 1818. ch. 373, against the owner of the ship, testimony of the declarations of the master, ' - part of the res gesta, connected with acts in furtherance of the voyage, and with jope of his authority, as agent of the owner, in the conduct of the guilty enter , is ad- missible in evidence against the owner. TTie United States v. Goodiug, 572. — 12 Wheaton, 460. 14. Upon such an indictment against the owner, charging him with fitting out the ship with intent to employ her in the illegal voyage, evidence is admissible that he commanded, authorized, and superintended the fitment, through the instrumentality of his agents, without being personally present. [See note at the end of the case.] Ibid. 15. It is not essential to constitute a fitting out, under the acts of congress, that every equip- ment necessary for a slave voyage, or any equipment peculiarly adapted to such a voy- age, should be taken on board ; it is sufficient if the vessel is actually fitted out with intent to be employed in the illegal voyage. Ibid. 16. In such an indictment, it is not necessary to specify the particulars of the fitting out ; it is sufficient to allege the offence in the words of the statute. Ibid. 7. Nor is it necessary that there should be any principal offender to whom the defendant might be aiding and abetting. These terms in the statute do not refer to the relation of principal and accessory in cases of felony ; both the actor, and he who aids and abets the act, are considered as principals. Ibid. 18. It is necessary that the indictment should aver, that the vessel was built, fitted out, &c., or caused to sail, or be sent away, within the jurisdiction of the United States. 19. An averment that the ship was fitted out, &c., " with intent that the said vessel should be employed" in the slave trade, is fatally defective, the words of the statute being, " with intent to employ" the vessel in the slave trade, and exclusively referring to the intent of the party causing the act. 20. Decisions of the courts of the United States upon the acts of congress prohibiting the slave trade. 4 Cond. Rep. 680. SPANISH LAND GRANTS. 1. A grant made by the British governor of Florida, after the declaration of independence, within the territory lying between the Mississippi and the Chatahouchee rivers, and between the thirty^first degree of north latitude, and a line drawn from the mouth of the Yazoo river due east to the Chatahouchee, is invalid as the foundation of title in the courts of the United States. Harcourt v. Gaillard, 628. — 12 Wheaton, 523. 2. Spanish grants, made after the treaty of peace of 1782, between the United States and Great Britain, within the territory east of the river Mississippi, and north of a line drawn from that river at the thirty-first degree of north latitude, east to the middle of the river Apalachicola, have no intrinsic validity, and the holders must depend for their titles exclusively on the laws of the United States. Henderson v. Poindexier's Les- see, 528.— 12 Wheaton, 530. 3. No Spanish grant, made while the country was wrongfully occupied by Spain, can be INDEX. 593 SPAT IH LAND GRANTS, id, unless it was confirmed by the compact between the United States and the state oi^Georgia, of the 24th of April, 1802, or has been laid before the board of commissicn- ers constituted by the act of congress of the 3d of March, 1 803, ch. 340, and of March 27th, 1804, ch. 414. Jbid. STATUTES OF KKNTUCKY. ■ ^ tice. y-. l,l!}W. %, OF LOUISIANA. Uy. . 2, ^ ational law. STATiTfJSS OF MARYLAND. Local law. STATUTES OF GEORGIA. Local law. ST,"" ,^S OF RHODE ISLAND. Usu^-„,.p STATUTES OF TENNESSEE. Local law. SUPREME COURT OF THE UNITED STATUTES. Notes of cases as to the jurisdiction of the supreme court of the United States, when the construction of a clause in the constitution, or a statute of the United States, is drawn into question, 472. SURETY. 1. The case of the United States v. Kirkpatrick, 9 Wheat. Kep. 720, 5 Cond. Eep. X13, revised, its authority confirmed, and applied to the present case. The United States t. Vanzemdt, 264. — 11 Wheaton, 184. 2. An omission of the proper officer to recall a delinquent paymaster under the injunctions of the fourth section of the act of the 24th of April, 1816, ch. 69, does not discharge his surety. [See note at the end of the case.] 3id. 3. The provisions requiring the delinquent paymaster to be recalled, and a new appointment to be made in his place, are merely directory, and intended for the security of the government ; but form no part of the contract with the surety. Ibid. ■ 4. The statute not removing from ofiice the delinquent paymaster, ipso facto, but only mak- ing it the duty of the proper officer to remove him ; the circumstance of new funds being placed in bis hands after his delinquency, does not discharge the surety. Rid. 5. The act of May 15th, 1820, ch. 625, s. 2, which requires new sureties to be given by certain public oflBcers on or before the 30th of September, 1820, does not expressly, or by implication, discharge the former sureties from their liability. ITie United States V. Nicholls, 611.— 12 Wheaton, 505. 6. The sureties are not responsible for moneys placed by the government in the hands of the principal, after the legal termination of his office ; but they are responsible for mo- neys which came into his hands while in ofiice, and which he subsequently failed to ^ account for and pay over. Ibid. I 7. In general, laches is not imputable to the goverrmient ; but, qusre, whether, in case there is an express agreement between the government and the principal, giving time to the latter, and suspending the right of the former to sue, the sureties are not discharged as in a similar case between private individuals ? [See note at the end of the case.] Ibid. 8. A mere proposition to give time, and suspend the right to sue, upon certain conditions and contingencies, which are not proved to have been complied with, or to have hap- pened, will not discharge the sureties. Ibid. 9. A. W. M'G- gave a bond to the bank of the United States, with sureties, conditioned for Vol. VI.— 75 2z2 594 INDEX. SUKETY. the faithful performance of the duties of the office of cashier of one of the offices of dis- coant and deposit during the term he should hold that office. The president and direc- tors of the bank having discovered that he had been guilty of a gross breach of trust, passed a resolution, at Philadelphia, on the 37th October, 1820, "that A. W. M'O., cashier, &c., be, and he is hereby suspended from office, till the further pleasure of the board be known :" and another resolution, " that the president of the office at Middle- town, be authorized and requested to receive into his care, from A. W. M'G., the cashier, the cash, bills discounted, books, papers, and other property in said office, and to take such measures for having the duties of cashier discharged, as he may deem expedient." These resolutions were immediately transmitted by mail to the president of the office at Middletown, who received them on the morning of Sunday, the 29th of the same month, but did not communicate them to the cashier, nor carry them into effect, until the afternoon of the 30th, between four and five o'clock : held, that the sureties continued liable for his defaults until that time. S/PGill v. The Bank of the United States, 617.— 12 Wheaton, 511. 10. On such a bond, the recovery against the sureties is limited to the penalty. [See note at the end of the case.] Ibid. 11. Partial payments having been made by the sureties, (subject to all questions,) the appU- cation of these payments was made by deducting them from the penalty of the bond, ' and allowing interest on the balance thus resulting, from the commencement of the suit, there having been no previous demand of the penalty, or acknowledgment that the whole was due. Ibid. 12. But interest was refused to the sureties on the payments. [See note at the end of the case.] Ibid. TENDER AND REFUSAL. 1. Bank-notes are a part of the currency of the country ; they pass as money ; and are a good tender, unless specially objected to. [See note at the end of the case.] Bank of the United States v. The Bank of Georgia, 120.— 10 Wheaton, 33.3. 2. In case of such a payment upon general account, an action may be maintained by the party paying the note, if there is a balance due him from the bank upon their genera! account, either upon an insimul computassent, or as for money bad and received. Ibid. 3. Notes of cases on the law of tender and refusal, 134. TITLES TO LANDS. The title to lands can only pass, by devise, according to the laws of the state or country where the lands lie. The probate in one state, or country, is of no validity as affectinj; the title to lands in another. M'Cermick v. SuUivant, 71. — 10 Wheaton, 192. TREATIES. Construction of the treaty with France of 1778. Notes of cases, 70. USURY. 1. In a contract for the loan of money, the law of the place where the contract is made is to govern ; and it is immaterial that the loan was to be secured by a mortgage on lands in another state. De Wolf v. Johnson, liO. — 10 Wheaton, 367. 2. In such a case, the statutes of usury of the state where the contract was made, and not those of the state where it is secured by mortgage, are to govern it, unless there be some other circumstance to show, that the parties had in view the laws of the latter state. Ibid. 3. Although a contract be usurious in its inception, a subsequent agreement to free it from he taint of usury, will render it vaUd. Ibid. 4. The purchaser of an equity of redemption cannot set up usury as a defence to a biU brought by the mortgagee for a foreclosure, especially if the mortgagor has himself waived the defence. Ibid. 5. Under a usury law which does not avoid the securities, but only forbids the taking a greater interest than six per centum per annum, a court of equity will not refuse its aid to recover the principal. Jbid. 6. Notes of cases decided on the law of usury, 153. \'ARIANCE. Variance in pleading. Notes, 319. . i INDEX. 595 VENDOR AND PURCHASER. 1 . Upon a sale with a warranty of soundness, or where, by the special terms of the con- tract, the vendee is at liberty to return the article sold, an offer to return it is equiva- lent to an offer accepted by the vendor, and the contract being thereby rescinded, it is a defence to an action for the purchase-money, brought by the vendor, and will entitle the vendee to recover it back if it has been paid. Thornton v. Winn, 508. — 13 Whea- ton, 183. 2. So, if the sale is absolute, and the vendor afterwards consent unconditionally to take back the article, the consequences are the same. Ibid. 3. But if the sale be absolute, and there be no subsequent consent to take back the article, the contract remains open, and the vendee must resort to his action upon the warranty, unless it be proved that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it within a reasonable time. Ibid. 4. Rule of equity, that where land is sold as for a certain quantity, a court of equity re- lieves if the quantity be defective, only applicable to contracts for the sale of land in a settled country, where the titles are complete, the boundaries determined, and the real quantity known, or capable of being ascertained by the vendor. Dunlap v. Dun- lap, 654.— 12 Wheaton, 574. 5. A bona fide purchaser, who pays the purchase-money to a person authorized to sell, is not bound to look to its application, whether in the case of lands charged in the hands of an heir or devisee with the payment of debts, or lands devised to a trustee for the payment of debts. Potter v. Gardner, 606. — 12 Wheaton, 498. 6. But if the money be misapplied by the devisee or trustee, with the co-operation of the purchaser, he remains liable to the creditors for the sum so misapplied. Ibid, VISITATION AND SEARCH. I. Ships of war sailing under the authority of their government, in time of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real charac- ters, so far as the same can be done without the exercise of the right of visitation and search, which does not exist in time of peace. The Marianna Flora, 201. — 12 Whea- ton, 1. 2. JN^o vessel is bound to await the approach of armed ships under such circumstances ; but such vessel cannot lawfully prevent their approach, by the use of force, upon the mere suspicion of danger. Mid. 3. Where an aggression was committed by a foreign armed merchant vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offending vessel. Ibid. VOLUNTARY CONVEYANCES. Notes of cases on voluntary conveyances — fraudulent as to creditors, 279. WARRANTY. 1. Insurance. 2. Vendor and purchaser. WILLS. A testamentary paper executed in a foreign country, even if executed so as to give it the effect of a last will and testament by the foreign law, cannot be made the foundation of a suit for a legacy in a court of equity in this country ; until it has received probate here, in the proper court having the peculiar jurisdiction of the probate of wills and other testamentary matters. Armstrong v. Lear, 500 — 12 Wheaton, 169. THE END. ■mi ill ii5? ii'siitisii